Warden v. Marrero – Oral Argument – April 29, 1974

Media for Warden v. Marrero

Audio Transcription for Opinion Announcement – June 19, 1974 in Warden v. Marrero

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Warren E. Burger:

Thank you Mr. Justice Douglas.

We’ll hear arguments first this morning in number 73-831, the Warden of Lewisburg Penitentiary against Marrero.

Mrs. Lafontant you may proceed whenever you’re ready.

Mr. Chief Justice and may it please the Court.

The issue in this case is whether the respondent Marrero, who is ineligible for parole at the time he was sentenced, may now be considered eligible for parole since he has served more than one-third of his sentence.

Now, the sentence he is serving was passed down under a law that has since been repealed.

The law was repealed May 1, 1971 and the repealing statute is called the Comprehensive Drug Abuse Prevention and Control Act.

The respondent was convicted by a jury in the United States District Court for the Southern District of New York on two counts of receiving, concealing, facilitating 141 grams of heroine and with purchasing, dispensing, and distributing 194 grams of cocaine.

At the time of his conviction in sentence, people guilty of these violations where faced with the mandatory penalty of five years at least in jail and under that statute that within existence at that time parole was not available.

The parole that we see under 18 U.S.C 4202.

Approximately one year before the passage of this new repealing statute, the respondent was sentenced as a second offender and he received a sentenced of 10 years on each of two counts to run concurrently.

His conviction of May 27, 1970 was affirmed by the Second Circuit Court of Appeals and this Court denied certiorari.

Therefore, the responding of serving his sentenced in the Federal Penitentiary at Lewisburg Pennsylvania.

On February 24, 1972 a year and nine months after his sentence, respondent file the petition for habeas corpus in the United States District Court for the middle district of Pennsylvania.

He alleged that the statue 26 U.S.C 7237 (d) that was in effect at the time of his sentencing and under which as I said he was an eligible for parole was repealed.

He should now be eligible for parole having served more than a third the sentence.

The District Court denied the habeas corpus petition on jurisdiction grounds but Judge Neill and in the District Court’s opinion and by way of dictum said that the new statute did not repeal the prohibition on parole eligibility.

On the ground of the prohibitions of penalty preserved by the specific saving clauses of provision at Section 1103 (a) of the new act and under the general provision saving provision of one U.S.C Section 109.

The Court of Appeals for the Third Circuit reversed and granted respondents application for habeas corpus and directed that he be released within 60 days unless he has given a hearing.

There is a conflict in the jurisdictions throughout this country and this Court’s mandate — the Court’s mandates been state by Mr. Justice Brennan’s order pending this Court’s determination.

Now with this lay date after this case was set for argument, the respondent having served the Government with memorandum attacking the stay of the mandate issued by Mr. Justice Brennan on October 25, 1973.

Attempts to say that Mr. Justice Brennan’s order was an abstract order and that Mr. Justice Brennan therefore did a useless Act.

During the entire five and a half months since the mandate was issued not once did the respondent raise the ineffectiveness of stay order.

In fact, he recognized its validity because he attempted on two occasions to have it vacated but on different grounds.

Everyone else recognized the validity of that mandate and behaved accordingly including the District Court.

Respondent submits that Mr. Justice Brennan’s order is useless because he doesn’t maintain some words that incidentally the respondent believes maybe magic.

Some words that Mr. Justice Harlem issued in the Panama Canal case when he state a mandate and those words were “offer the proceedings under the mandate being state.”

We find no authority for such a construction.

Mr. Justice Brennan’s stay order which is on page 14 of the appendix is as follows and I would like to read it to Court.

It is ordered that the mandate of the United States Court of Appeals from the Third Circuit in case number 72-1842 (b) and the saying is hear by state, pending the timely filling of a petition for writ of certiorari in the above entitled cause.

Should such a petition be so timely filed this day is to remain in effect pending this Court’s action on the petition, if the petition for writ of certiorari is denied this day is to terminate automatically.

In the event the petition for writ of certiorari is granted, the state is to continue pending descending down of the judgment of this Court.

William J. Brennan, Jr.:

That the final stat Mrs. Lafontant.

The Government’s position is that after the word mandate.

I hope you are ready and the circumstance of this case and all proceedings they run.

Yes, and I —

William J. Brennan, Jr.:

And that that’s system and the whole of it.

That’s correct Mr. Justice Brennan.

William J. Brennan, Jr.:

I gather in fact that he is not been released and he is not have a pro hearing, is that correct?

That’s correct.

William J. Brennan, Jr.:

And so he still confined.

He is still incarcerated in the district.

William J. Brennan, Jr.:

And the District Court hasn’t suggested what the pro hearing

No sir, not in any event.

William J. Brennan, Jr.:

Pending on the decision here?

That’s correct, and so I say to you that is it not clear, I should ask?

Isn’t it clear on the face of the state order that the intending effect was to preserve the status quo of this case until a final determination was made.

We cannot even respond or say that respondent is urging form over substance because the form of the state order is certainly more than adequate but even if the word —

Potter Stewart:

He’s urging formal reform?

I said we will now say, you can urge a form over substance.

Potter Stewart:

He’s urging form of reform your information?

Yes, Mr. Justice Stewart.

Potter Stewart:

Is the respondent is still in the penitentiary, isn’t it?

The respondent is still at Lewisburg Penitentiary.

Potter Stewart:

Because a third of his sentence is not the end has elapsed, is that correct?

Yes, third of his sentence has elapsed and he — in his habeas corpus petition he has set that out that he has served more than a third of the sentence that was given him the ten years and therefore that he is eligible for parole because of the new repealing statute.

Potter Stewart:

And that’s the question of his eligibility for parole has the parole board —

Consideration for eligibility, yes right.

Potter Stewart:

Has the parole board done anything on his?

No, Mr. Justice Stewart.

Potter Stewart:

There is nothing at all it is just, so this is the question of eligibility.

Everything has been state and remained in status quo since his incarceration.

But I would like to even add that even if this date of reform had to be changed.

This Court felt that it should be changed.

It’s our position that this Court could stay to mandate a new, so wish.

Respondent further contends that the stay orders of no effect since he was entered after the Court of Appeals mandate issued.

These two is without merit because this Court n Car versus Marcia and in that now casualty insured to Company versus Flowers, stated clearly that the fact to mandate in the Circuit Court of Appeals has issued does not defeat this Court’s jurisdiction.

Now in discussing the basic issue concerning whether not the respondent is eligible for consideration for parole.

I wish to refer briefly to the common-law.

Under the common-law when a criminal statute was repealed by a no statute or was amended so that there was a lesser punishment, the defendant could take advantage of that.

He was entitled to the benefit of the new Act.

Unless a specific saving clause, in the new law express legislative intent to the contrary or as the general saving statute contain such a provision.

Here we not only have a specific saving clause in 1103 (a) but we also have the general saving clause Section 109 contained in 1 U.S.C providing the prosecution for any violation of law occurring prior to May 1, 1971 shall not be affected by the repeal of the former drug abuse statute.

In denying parole and probation consideration we are held I believe a lot by the case of United States versus Bradley whether the offender was sentenced after passage of the repealing Act and where this Court held that the repeat — the prohibition and the repealing statute of suspended sentence — sentences probation and early parole survived the repeal of the 1956 Narcotic Control Act.

However, since none of the offenders in the Bradley case, none was eligible for consideration for parole because they had even began to start serving their sentence.

The issue of whether or not Section 4202 was banned was not settled.

It was only settled the Section 4208 was — did not ban the earlier sentences or the earlier provisions of 1956 Drug Abuse Act.

We submit that the ban on Section 4202 parole, like the ban on Section 4208 (a) parole certainly survives the 1956 statute and what the Court has before is a relatively straight forward question of legislative intent.

Ineligibility for consideration for parole is covered as part of the prosecution of the offense referred to in the act saving clause and as part of the penalty for the prior upon including the general, a saving statute and in Bradley this Court ruled that the word prosecution in the saving clause was held to include sentencing at page 611 and rightly so and we submit that it also includes the word penalty.

In the responding in his brief at page 4 and note 2, reference is made to the effect there that unfortunately the responding does not possess a crystal ball to know that the sentencing Court intended for him to remain in jail for more than three and a half years.

But respondent should possess and certainly what the sentencing Court did posses was knowledge that in sentencing respondent to 10 years.

He would not be free on parole before the mandatory release time.

When the judge entered the order and entered the sentence of ten years that was not only part of the prosecution that was part of the penalty and at that point in time he knew that when he sentenced the respondent to 10 years, the respondent was not going to be eligible for consideration for parole.

But determination was made on a date of the sentence and of the judgment.

William H. Rehnquist:

He could have sentence respondent to a longer term under the very time.

He could have sentence under the violation at that time.

He could have sentence the respondent to 40 years but he gave him 10 years to 10 year terms to run concurrently.

Potter Stewart:

How?

What discretion that he have in a way of sentencing into a shorter term?

He had no discretion whatsoever because under the statue that time, it was mandatory if he were a first offender that you will receive a five year term.

To a second offender was mandatory that you would be given a minimum of ten years but you could have been given a maximum of four years.

Potter Stewart:

And that was the second offender?

The respondent here was a second offender.

Potter Stewart:

And there were two counts or one?

There two counts, one of them as I indicated of concealing, facilitating the heroine, second count was dealt with a 194 grams of cocaine.

Potter Stewart:

So, is it correct to say that the judge impose the minimum permissible sentence?

Yes, you would be correct to say that.

Potter Stewart:

So it does may demerits what the judge might have wished to have given less than that does it if he did the power to do it?

Well, I do not think we — I am not that concerned about what he may have wished.

I do believe we can’t say what he might have wish to have done.

All I’m saying is that when you gave him 10 years he knew very definitely that he is not eligible for parole also.

Potter Stewart:

But the point of my question was even had the judge perhaps wished to give him a less than a 10-year sentence?

He was not free to do so. No doubt about that.

Potter Stewart:

He was not free to do so or you even had the judge wish to make him eligible for parole in less than a 10-year period.

He was not to do so.

He was bound, he was bound by the law as.–

Potter Stewart:

At the time of his sentencing?

At the time of his sentencing as we contend, we are still bound of the law no matter what the individual wish of the particular judge or the respondent might be.

William O. Douglas:

Mrs. Lafontant, yes I think I understand you of this ties in to be the original sentenced.

Do we have a jurisdictional of problem here of this habeas and an application was far all the other than the district of incarceration not in the original sentencing Court.

Does this make a difference?

We feel that it makes no difference in this case that he is properly before the Court in the habeas corpus position.

William O. Douglas:

Even though on your theory is attacking your original sentence?

And in his incarcerated in Pennsylvania.

William O. Douglas:

Do not you know but I think that hasn’t — that fast fact has not prevailed in some of our jurisdictional verse appeared before that the application.

Well the government’s position is that he is properly before the Court and we have not pushed that position that it got really to the merits of the case in his instance.

William O. Douglas:

But if it’s questioned jurisdiction I suppose we can avoid it here, we?

In this Court?

Yes, Your Honor.

Now the general saving statute in title one which dates from 1871 it provides in very broad terms that the repeal of any statute shall not have the effect to release any penalty, forfeiture or liability incurred under such statute unless the repealing act expressly so provides.

There has been a considerable amount of discussion in the briefs concerning the words penalty, liability and forfeiture but in the Reisinger case in 1888 which consider that question, the Court applied the statute to this criminal case where the statute is actually been repealed before the indictment was returned and the repealing statute itself just as in our case had its own savings clause except it was much narrower.

It applied only by terms to saving prosecutions that it all ready been commenced at the time of the repealer.

In the Reisinger case, it not only said that the general’s saving statute with the narrower clause prevailed but it said it could not be construed as being in conflict with the narrower statute and they went further and said that the word that we have been talking about penalty, forfeiture, liability were intended to be synonymous with the word punishment.

We take the position that this consideration or this denial of consideration for eligibility for parole is punishment or penalty which automatically attached upon conviction, as part of the sentence, as part of the prosecution and that the saving statute of Section 109 and specific savings statute of 1103 prevent the offender from being considered for parole eligibility.

In this analysis it’s confirmed by the legislative history which is covered I think very fairly in our brief.

That is the legislative history of the Narcotics Control Act of 1956.

That history has expressed a strong congressional intent to punish narcotic pushers severely in part by eliminating parole as an element in the punishment and this was part of the penalty for trafficking in narcotics.

At the 91st Congress in volume 116 of the congressional record at page 33650 Congressman Anderson of California said and I would like to quote him “When an individual encourages another to take drugs and when an individual sells drugs to another, he is torturing that person and ruining that person’s life and we should have no sympathy for him.”

The penalty for the pusher should be equal to the misery because it’s his fellowmen.

The new statute substantially revised the elements of the narcotics offenses and the applicable penalty provisions.

And it’s general philosophy was summarize by Congressman Greimel in the same congressional record only at page 33616 when he said “ the new bill expertly combines the weapons of law enforcement, rehabilitation and research for massive attack on the drug abuse problem in the United States.”

By supporting this legislation we will give our law enforcement officials the tools they need to crack down on the organize criminals and pushers who profit from agony and death.

William H. Rehnquist:

Mrs. Lafontant under the 70 Act repealed of 56 Act in total?

Yes.

William H. Rehnquist:

It wasn’t just the penalty provisions that were appealed?

That is correct Mr. Justice Rehnquist it was a complete new act.

It was a much broader act because the 1956 statute dealt only with narcotics.

It didn’t deal with general — in general barbiturates fundaments then that sort of thing.

William O. Douglas:

Where as part of a continuing criminal enterprise that 848 under the 70 Act?

Yes.

William O. Douglas:

So it didn’t repeal everything or at least you say that much to deny?

Yes and I was getting to, that is correct and I’m getting to Section 848 to explain how that still of its in and ties in with congresses intent to severely punish the pusher.

William H. Rehnquist:

That 848 was a new provision in the 70 Act, wasn’t it?

But really it’s a new provision in the 70 Act but in the sense it has retained the law of the old Act because the punishment there is still — in fact the punishment under Section 848 is even much more severe because in Section 848 the penalty is raised for the first offender from five years to ten years.

And the other limits are raised as I recall to life to prison rather than the other.

So Congressman Greimel — his last sentence is either the same time we will recognize the fact that those who are addicted to drugs are innocent victims who must be helped and not punished.

Under the old law ineligibility for parole only covered offenders involved in selling or otherwise transferring narcotics and did not apply to the possessors or to the individual abusers.

Now the new Act is still consistent with Section 7237 (d) in retaining the punitive approach for the pusher in illegal drugs, this is down straight by the fact that the ban on suspended sentences, probation in parole has been continued for persons who engage and “in a continuing criminal enterprise”.

Although the amicus brief at page 6 claims that the government really realized the harshness of 848 and therefore it hasn’t brought any indictments under that section their brief is in there.

The Government has filed several prosecutions.

One of which has reached appellate level and that case is United States versus Manfred at 488 fifth 2d 588 where the convictions were sustained and the constitutionality of Section 848 upheld.

It is true that there is a new flexibility in the 1971 Act but there is no indication that flexibility was to have retroactive effect.

Despite the permissive petitions argument that the action taken by congress in repealing Section 7237 (d) and allowing discretion as to prohibition in parole for some narcotic offenders was not primarily in expression of a desire for leniency.

The reason was really much more programmatic.

The state of goal is much more programmatic.

They want it to make sure that people who were pushers were convicted, were prosecuted and convicted and what they have found is in many jurisdictions, the prosecutors routine at about bringing cases where the penalty was severe and maybe the trafficking not as great as if it was not in a respondent’s case but also the fact that the jurors often did not wish to give such a severe sentence and sole, therefore several guilty people or people we might want it to prosecute were not prosecuted.

So they wanted to make sure that the pusher was prosecuted and convicted.

It is also evident from the terms of the congressional intent as shown that the no parole provision is a penalty from the view point of the convicted defendant.

His penalty is very substantially released if he is paroled into society and he is no longer incarcerated behind steel bars.

A convicted prisoner who’s been paroled undoubtedly also believes the parole constitutes the most substantial release penalty.

I think we be hard pressed to find any convict who did not view the unavailability of parole as a penalty.

In the Six Circuit stated the view point correctly in Harris versus United States at 426 fifth 2d on page 100 when it said it maybe legislative grace for congress to provide the parole but when it expressly removes all hope of parole.

This is in the nature of an additional penalty.

Under both the old Act and the new Acts — new Act, petitioners conduct was criminal and even though there were legislative changes made it is our submission to this Court that the old act was not repealed.

We submitted to the Court of Appeals was an error when it reached the result in holding that violation of the pre May 1, 1971 drug loss are not to be punished under the pre May first statute.

Our position is that if the time the crime was committed the law in effect control.

At Section 1103 (a) forecloses consideration for parole, eligibility under Section 4202 just as it does in 4208 and the general saving statute of Section 109 clearly mandates that the availability of parole is foreclosed.

Thank you.

John J. Witmeyer, III:

Mr. Chief Justice and may it please the Court?

Having heard the government’s argument I believe it’s appropriate for us to step back for a moment and take a fresh look at the question that confronts this Court today.

And that question is whether the Federal Government can presently deny Mr. Marrero parole consideration under Section 4202 of title 18 despite the fact that the only bar to parole eligibility was expressly repealed by the comprehensive Drug Abuse Prevention in Control Act of 1970 simply because Mr. Marrero was convicted of a pre-repeal offense.

But if the question is stated in another fashion, I believe it is whether penal authorities can deny the 800 prisoners and Mr. Marrero’s position eligibility for participation and important rehabilitated programs provided to parole.

Even though there is no rational purpose to be served by that denial.

And in answering these questions there are I believe three inquiries that should be made.

First that the 1970 Drug Control Act marked a rejection by the congress of its earlier approach to the drug fall in this country and did it represent a decision that in effective program of rehabilitation was essential if drug abuse were to be controlled.

Second, with considering Mr. Marrero eligible for parole effectuate that congressional decision without at the same time creating any difficult administrator problems.

And third, does the language of the four applicable statutes allow Mr. Marrero to be considered for parole?

Let’s consider first the first question.

What did the 1970 Act signified as the congresses plan for the drug problem in the United States?

I believe the answer to that question is readily apparent from the history of the drug fall in this country and congresses response to it.

John J. Witmeyer, III:

I think we all know that congress first attack the drug problem in the early 1900’s because of the wide spread drug abuse in the 19th century.

But for the purposes of this case perhaps the most important legislation was the Narcotic Control Act of 1956, the statute under which Mr. Marrero was convicted.

And in 1956 congress reviewed then ongoing drug problem in this country and it concluded that you take a very harsh approach.

It adopted a system of mandatory minimum sentences without possibility of parole and it decided that severity was the key to solving the drug problem.

But as we all know 14 years under the 1956 legislation, so the drug problem in this country grow to alarming proportions and it was obvious that the 1956 approach simply did not work.

The 1960 saw the Federal government begin a review of what would happen with its prior efforts to control this problem.

There were many studies undertaken both within and without the government including those of two presidential commissions.

The Criminal commission and the cast in that commission and the conclusion of those commissions and of many others was that rehabilitation was essential to solve the drug problem.

And Congress slowly began to change its approach.

For example in 1966 it adopted Narcotic Addict Rehabilitation Act to provide a method of treating and rehabilitating narcotic addicts.

In 1968 for example it amended the community mental health central legislation to include treatment for narcotics addicts in mental health centers.

And in 1970 congress embarked upon a comprehensive revision of the drug laws of this country.

Congress had before it.

Evidence of the need for rehabilitation and for merely rating the harsh penalties that it been inflicted under prior law in order that the law would benefit the crime.

And Congress also recognized that under prior law prosecutors had become reluctant to prosecute and judges and juries had become reluctant to convict.

Now these important facts, facts which the government argue show that in 1970 congress merely intended to amend the law, to make it easier to put more people in jail, these facts actually shows something much different.

They show a public consensus including that of the judicial process in this country that the 1956 approach was not the solution to the problem.

They represented public rejection of the harsh retributive approach and it was consensus so strong that I believe respect for a law in this country began to suffer as a judicial process became unwilling to enforce the law.

And the 1970 Act was in response to all of this facts and that was not an act that merely amended the criminal provisions law because it also directed the development of treatment centers and it rehabilitated programs and it directed further studies be undertaken into the drug problem.

And about the same time congress enacted the drug abuse education act of 1970 and the comprehensive alcoholism in alcohol abuse act of 1970.

All of which when taken together show a complete reformed of Federal legislation and the Federal approach to the drug problem in this country.

And the repeal of the bar to parole shows that parole was to be an important rehabilitative tool and implementing the new congressional approach.

Now, Congress’ determination that rehabilitation was essential to solving the drug problem is further reflected by the drug abuse office and treatment act of 1972 and that act contains a specific congressional finding that the success of Federal Drug Abuse Programs and activities requires a recognition that education, treatment, rehabilitation, research, training and law enforcement efforts are all interrelated.

And I think the answer to the first enquiry then is Congress in 1970 did reject its old approach because harsh sentences reluctantly imposed were now to be replaced by a vigorous federal program founded upon rehabilitation.

The next question then is how would considering the 800 prisoners and Mr. Marrero’s position fit into this new congressional approach and the answer is clear that it would help effectuated.

As this Court has already recognized in Morrisey against Brewer parole is one of the most important rehabilitative tools in our federal penal system and rehabilitation is the underlying objective of the 1970 Act.

Considering Mr. Marrero for parole effectuates that intention and poses no problems because the parole board has already stated in this case that it can easily handle the 800 applications of prisoners and Mr. Marrero’s position.

In fact the parole board routinely handles many more applications than that.

The board has also stated that no one would be released on parole unless the board felt that both the needs of society and of the individual prisoner would be served by doing so.

Simply stated them parole eligibility from Mr. Marrero both effectuates congresses new plan for solving the drug abuse problem in this country and what according to the parole board benefits society generally.

John J. Witmeyer, III:

And it would also place no burden whatsoever on the Federal Courts because prior criminal proceedings would not be re-opened and judicial determinations are not required to implement parole under Section 4202.

I think then the answer to the second enquiry is that parole is consistent with congresses plan for solving the drug problem and no rational purpose would be served by denying Mr. Marrero parole consideration.

This then brings us to the technical statutory interpretation questions post by this case.

And I agree that this case is principally won a statutory interpretation.

Parole in the Federal system is made available by Section 4202 of title 18 under prior law Section 7237 (d) of the Internal Revenue Code stated that 4202 could not be applied to certain prisoners.

And 7237 (d) was specifically repealed in 1970 by the 1970 Drug Control Act.

The Statutory interpretation of question is whether that repeal was rendered in effective as to prisoners convicted under prior law because of two savings statutes.

Section 1103 of the 1970 Act and Section 109 of title 1.

The correct answer I believe is that those statutes do not preclude parole eligibility.

In fact if this Court whether conclude otherwise since no rational purpose would be served by ninth parole to the 800 persons and Mr. Marrero’s position then if this court held parole was unavailable it would be required the confront constitutional questions.

Since there is no rational purpose to be served would not a denial of parole contravene equal protection guarantees of the Fifth Amendment or is the California Supreme Court held last month in the case of Ray Foust is not denying parole to drug offenders, a violation of the Eight Amendment of the United States Constitution and that constitutes rule and unusual punishment.

But I think an analysis of the savings statutes shows that these constitutional questions need never be reached because those statutes when correctly construed do not preclude parole.

First of course, the operation of the two saving statutes must be evaluated in the light of congresses over all plans in 1970 for solving the drug problem and accordance with — and in accordance with the well established rule of statutory construction, that statutes must always be construed to effectuate remedial objectives.

The first statute then is section 1103 of the 1970 Act and that was a statute designed to save prosecutions for violations of prior law and nothing more.

Now this Court has already construed Section 1103 last term in the case of Bradley against the United States.

And there this Court said that the word prosecution as used in 1103 is to be defined by its ordinary legal usage and I think is as clear from this Court’s decision in Morrisey against Brewer the parole process is not part of a prosecution in the ordinary legal sentence.

But in Bradley this Court was confronted with the question of where congress intended to draw the line in not changing the operation of prior law?

And it concluded that the word prosecution is used in Section 1103 precluded the Trial Court in granting probation of accelerating a parole eligibility date.

But this Court specifically point it out that parole under 4202 was a very different thing and respondent submits that those differences are with applied that Mr. Marrero be considered eligible for parole.

William H. Rehnquist:

Do you think that the decision in Bradley about the factors consider there raises the same sort of constitutional question that you say would be raised by a denial for period the parole eligibly here?

John J. Witmeyer, III:

Well You Honor, I believe the similar questions are raised except there was a rational purpose to be served by the construction adopted by this Court in Bradley because I believe it was rational to conclude that Congress did not intended — did not intend that 1970 Act either reopen prior criminal proceedings or that it would treat unequally persons convicted of violations of prior law.

And if either of those or if this Court had allowed a Trial Court to place a prisoner on probation or had allowed the Trial Court to decide whether to accelerate his parole eligibility date then either prisoners convicted of violating prior law would have had their eligibility for probation or the question of whether their parole eligibility date could be accelerated in turn of the two of the circumstance whether or not they were sentenced before or after May 1, 1971.

But the alternative would have been for all prior criminal proceedings to have reopened.

Not only placing and undo burden on the Courts but also in the face of the probation statute.

And the statute allowing acceleration of parole which states of those determinations must be made at sentence — at the time of sentencing.

I think those reasons gave a rational justification for this Court’s interpretation in Bradley but none of those reasons is present here today and a case involving Section 4202.

Parole under 4202 simply creates no administrator problems whatsoever.

Byron R. White:

That in Bradley I think that the Court looked upon ineligibility for parole as part of the sentence?

John J. Witmeyer, III:

No Your Honor, I think not.

The question in Bradley was Section 4208 and that concerns a Trial Court’s acceleration of the parole eligibility date.

Byron R. White:

Well then it said at the Trial Court acceleration of it was under Bradley, the Trial Court could not do that?

John J. Witmeyer, III:

That’s correct Your Honor.

Byron R. White:

So he could not interfere with the ineligibility for parole under the existing?

John J. Witmeyer, III:

Well, he could not exercise his discretion that was granted to him under Section 4202 to accelerate the eligibility date.

Byron R. White:

I am just saying the reason that Trial Court didn’t have this power is because under the prior law he didn’t have that power.

John J. Witmeyer, III:

Yes Your Honor, that’s correct.

Byron R. White:

And he didn’t have power to interfere with ineligibility for parole will be granted, eligibility for parole where it wasn’t present before.

John J. Witmeyer, III:

Well, I think that mischaracterizes the parole process Your Honor.

Under 4208 the trial judge can accelerate the parole eligibility date but parole itself is granted by Section 4202 and the trial judge can appeal with that.

Byron R. White:

Well, I understand that but the prior law with respect to parole was held to apply in that?

John J. Witmeyer, III:

Your Honor, I believed what this Court said was those decisions of the Trial Court which were made at the time of sentencing and therefore, were essentially part of the sentencing process were caught by the word prosecution is used in 1103.

Byron R. White:

And its then ineligibility for parole was part of that and the Trail Court could interfere with it?

John J. Witmeyer, III:

Your Honor again, I think not because what this Court said was the trial court could not accelerate.

Byron R. White:

I agree with you the Court said it was leaving the question open.

John J. Witmeyer, III:

Yes.

Byron R. White:

Well, it could not be right.

I couldn’t be wholly right.

John J. Witmeyer, III:

Well Your Honor, I think perhaps the problem is the Government’s argument and that the argument Your Honor is directing himself to.

Is that the word prosecution may preclude parole because the date of parole eligibility depends on the length of sentence and sentence is set by a Trial Court and I guess that would be the essence of the Government’s argument is to why prosecution catches parole ineligibility.But I think the relationship of parole under 4202 to sentence is only incidental.

It exists only because congress elected to use the length of sentence as one of the criteria for determining whether a prisoner should be released on parole.

I believe that eligibility for parole itself is a feature of statute created by the Congress.

Parole is determined by the administrative body and whether one is eligible for parole is a question only of a person’s status under the laws of the United States, it does not involve an exercise of judicial discretion by a Trial Court in making any specific determination.

I believe them the fact is that the word prosecution does not preclude parole eligibility and that Section 7237 (d) is not saved by 1103 and that conclusion effectuates the rehabilitative purpose intended by congress in enacting the 1971.

Thurgood Marshall:

Only three are better purpose is this a pusher or an addict?

John J. Witmeyer, III:

Your Honor —

Thurgood Marshall:

I cannot find them in the record.

John J. Witmeyer, III:

It is not in the record.

Thurgood Marshall:

Was not in the record?

I do not know.

I think the Government however in stating that the 1970 law intended to punish pushers and to continue the punitive approach mischaracterizes with congress did.

Thurgood Marshall:

You made the same — if it was a plain pushing, you made the same argument?

John J. Witmeyer, III:

Yes, Your Honor because congress — the Government’s argument in — with respect to congressional intent rest largely on Section 848.

Thurgood Marshall:

Rehabilitate a pusher?

John J. Witmeyer, III:

Your Honor, I’m sorry.

Thurgood Marshall:

How do you rehabilitate a pusher?

John J. Witmeyer, III:

Your Honor, the penal authorities have many programs including those of parole but prisoners are placed in supervised environments are given jobs, or given training.

The parole board is the board which evaluates whether these programs will be effective in adopting a prisoner to fit back into society.

Now, I’m not going to infringe my view on their judgment because I have never been involved in a parole process but I think it’s recognized as a principle of penology that most prisoners can be rehabilitated if they are placed in a proper environment to do so and the parole board is one of the important mechanisms or accomplish in that.

Thurgood Marshall:

Is this legist act aim that rehabilitated pushers?

John J. Witmeyer, III:

Your Honor I think it is.

Thurgood Marshall:

As I read it, its rehabilitating addicts, am I wrong?

John J. Witmeyer, III:

Your Honor it’s very hard to say what the board pusher means.

The only case —

Thurgood Marshall:

Upon that, a pusher is man itself does not use those.

John J. Witmeyer, III:

Well, then I think the statute clearly intends that many of them be rehabilitated Your Honor because the statute —

Thurgood Marshall:

Those I thought it was addicts?

John J. Witmeyer, III:

It is aimed that addicts and users, and I think also pushers unless they are in a supervisory position fopur to five persons.

Thurgood Marshall:

Where in that you can show me everything about pushers?

John J. Witmeyer, III:

Your Honor the only thing in the statute.

Thurgood Marshall:

What you said it’s there, where?

John J. Witmeyer, III:

Its — By virtue of Section 848 which bars parole in one very limited instance.

Namely a person who supervises is five or more others in the sale of drugs and derives substantial income from them.

Thurgood Marshall:

Other pusher?

John J. Witmeyer, III:

Yes, Your Honor.

Yes, Your Honor that’s correct.

Thurgood Marshall:

And you say that show it was made to rehabilitate pushers?

John J. Witmeyer, III:

It was to rehabilitate the individual who sells drugs either because he is a user or because he is an addict or because he’s in powers and he is selling to a small group of people and he is the kind of person that hopefully society can salvage and make a useful person again.

Yes, Your Honor.

Thurgood Marshall:

That category so quite a bit.

John J. Witmeyer, III:

Your Honor, I do not know.

John J. Witmeyer, III:

There are no facts, and a record on this case and I am not familiar with Mr. Marrero personally to be able to find out.

I have review with the Warden’s brief —

John J. Witmeyer, III:

He was apprehended according to the Second Circuit opinion on a roof of a building in West Harlem, New York in which they found drugs and he was the owner of the apartment.

Beyond that I do not know specifically what he is ever done.

Warren E. Burger:

Well, except that as it is reflected by his prior conviction.

At shed some like doesn’t it?

John J. Witmeyer, III:

Yet, he was convicted in one other instance of possessing drugs.

Yes Your Honor.

It does not say whether he is a user or an addict or a pusher.

I really do not know.

Warren E. Burger:

But the quantity gives some right to —

John J. Witmeyer, III:

That it’s probably was selling.

Yes, Your Honor.

Your Honor, I think that one remaining question facing this then today is Section 109 of title one which is the general Federal savings statute.

But I think before considering the operation of Section 109 is necessary determined whether it should be applied at all in this case.

And I believe the answer is 109 should not be applied for two reasons.

First, Section 109 originally enacted in 1871 was intended only to aviate the need for including a specific savings clause and every repealing statute in order to preclude what are called common law technical abatements.

I think it’s evident from the history of the 1871 Act that that Act was not intended to substantially change the law or to a rack substantial impediments to effectuating remedial statutes.

And in this case the 1970 Drug Control Act has its own savings clause Section 1103.

And 1103 specifically limited to prosecutions and nothing more and 1103 in compresses all violations of prior law.

If 109 covers more than 1103 then these two statutes are clearly in conflict and 1103 as the latest expression on the legislative will, should prevail.

Second, allowing parole eligibility is not the consequence of a technical abatement as the term was used to common law and since I believe the purpose of 109 is to prevent technical abatements applying 109 to preclude parole eligibility would not effectuate its purpose.

And for these reasons 109 should not be applied at all.

But even if this Court does decide to reach the question of the actual operation of 109, the conclusion still is that it does not preclude parole eligibility.

The effect to Section 109 in this case depends upon the meaning of two words used in that statute.

One is prosecution the other is penalty.

Since prosecution is used in Section 1103 does not preclude parole then is used in 109 it should not do so either.

The question then is the meaning of the word “penalty” as used in 109 and I believe there are three reasons why the term penalty does not bar parole.

First, Section 109 is written in two parallel clauses.

One refers to sustaining prosecutions and the other to releasing their extinguishing penalties.

John J. Witmeyer, III:

These two clauses were clearly written in parallel and therefore should be construed consistent with each other, each thus saving the same kinds of things, if prosecution does not bar parole then neither does penalty.

Second, in a criminal case as Five Circuits have all ready decided I believe the word “penalty” as used in 109 should be interpreted to mean the imposed sentence of the Trial Court.

But parole under 4202 is not a part of sentence.

And release on parole would not even affect and impose sentence and consequently for that reason also the term penalty should not bar parole.

And third, if the word penalty bars parole then not same word picks up numerous other collateral restraints imposed upon convicts under Federal Law.

And no practical purpose would be served by requiring congress to include language accepting amendments to any of those statutes from the effect of 109.

The answer to the third enquiry then I think is that the language of the applicable statutes permits parole eligibility and the conclusion is then that the technical and I believe purposeless construction urged by the Government ought to be rejected because Congress is now designed a comprehensive plan for attacking the drug problem in this Country and rehabilitative programs are the cornerstones of the Congressional plan.

Considering Mr. Marrero and the 800 other prisoners in his position eligible for participation and the important rehabilitative programs that parole provides, helps effectuate congresses plan for solving the drug problem in this country and there is simply no justification for abandoning these 800 prisoners.

For condemning them to serve their terms without access to import rehabilitative programs and for frustrating the basic purpose of the 1970 Act.

For this Court to exclude Mr. Marrero from parole consideration would be for it to adopt a vindictive approach to the drug problem and approach which congress has rejected and which cannot be justified.

Warren E. Burger:

Thank you Mr. Witmeyer.

Do you have any problems Mrs. Lafontant?

Mr. Chief Justice and may it please the Court.

I’d like to respond briefly to Mr. Justice Marshall’s question as to whether or not the respondent is considered a pusher or whether he was an addict.

From the record it is shown that he was not an addict because he attempted to obtain sentence under NARA, the Narcotics Addiction Rehabilitation Act and he was denied that because there was no proof that he was an addict.

Pertaining to the judge who said an addict and I want the sentence under NARA that was denied because of there is no proof that he was an addict.

In addition at the trial level there was some evidence introduced that the respondent’s apartment was used to cut the dope into whatever side if necessary and several others would come there to get there share and that dope was sold.

There is no proof in the record that told that Mr. — of the respondent was an addict although he asks for a treatment under NARA and that was denied.

Also as to the statistics about 800 or more inmates there are only 489 inmates presently incarcerated who was served one-third of their term.

We have a total of 734 however who are in custody under the old Act but only 489 had served with their term.

Thank you.

Warren E. Burger:

Thank you.

Thank you Mr. Witmeyer.

The case is submitted.