Maurice Schick v. George J. Reed, Chairman of the United States Board of Parole , 483 F.2d 1266 ( 1973 )

ROBB, Circuit Judge:

In 1954 the appellant Schick, a master sergeant in the United States Army, was convicted by a court-martial of the premeditated murder of an 8-year old girl, in violation of Article 118 of the Uniform Code of Military Justice. 10 U.S. C. § 918 (1970).¹ The court-martial sentenced Schick to death. In 1960 President Eisenhower commuted the sentence to a dishonorable discharge and imprisonment for life upon the express condition that Schick should “never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 USC § 4201 et seq., 10 U.S.C. 3662 et seq., [sic] 10 USC 871, 874), or any acts amenda-tory or supplementary thereof.” Schick was thereafter committed to the custody of the Attorney General and is now confined in the United States Penitentiary at Lewisburg, Pennsylvania. The United States Board of Parole has declined to consider him for parole although in the absence of the condition attached to the President’s commutation he would be eligible for such consideration. See 18 U.S.C. § 4202; 10 U.S.C. § 858 (1970).

Schick filed this action in the District Court, seeking a declaration of his eligibility for consideration for parole pursuant to 18 U.S.C. § 4202, and an order directing the members of the' Board promptly to consider him for parole. The District Court granted the defendant’s motion for summary judgment upon the ground “that the conditional commutation of plaintiff’s sentence was the result of the exercise by the President of his powers under Article II of the Constitution to grant reprieves and pardons for offenses against the United States, and of his authority as Commander in Chief of the Armed Forces and under the provisions of the Uniform Code of Military Justice”. Schick appeals. We affirm.

In commuting Schick’s sentence the President exercised the authority conferred upon him by Article II, section 2, clause 1 of the Constitution, providing that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That power includes the authority to commute a sentence of death to imprisonment for life. Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161 (1927). Moreover, it is settled that a pardon or a commutation of a sentence may be granted on condition. Ex parte Grossman, 267 U.S. 87, 120, 45 S.Ct. 332, 69 L.Ed. 527 (1925); Semmes v. United States, 91 U.S. 21, 27, 23 L.Ed. 193 (1875); United States v. Klein, 13 Wall. (80 U.S.) 128, 142, 20 L.Ed. 519 (1871); Ex parte Wells, 18 How. (59 U.S.) 307, 15 L.Ed. 421 (1855); Stroud v. Johnston, 139 F.2d 171, 172 (9th Cir. 1943), cert. denied, 321 U.S. 796, 64 S.Ct. 846, 88 L.Ed. 1085 (1944). The appellant contends, nevertheless, that the condition imposed in this case is illegal and invalid, since it contravenes the statute providing that a prisoner shall be eligible for parole after serving fifteen years of a life sentence. 18 U.S.C. § 4202 (1970).

The courts have stated many times that Congress cannot control or regulate the action of the President in granting pardons or commutations. See Ex parte Grossman, supra; The Laura, 114 U.S. 411, 414, 5 S.Ct. 881, 29 L.Ed. 147 (1885); Ex parte Garland, 4 Wall. (71 U.S.) 333, 380, 18 L.Ed. 366 (1866); Yelvington v. Presidential Pardon & Parole Attorneys, 94 U.S.App.D.C. 2, 4, 211 F.2d 642, 644 (1954); Thompson v. Duehay, 217 F. 484, 487 (D.C.W.D. Wash.1914), aff’d, 223 F. 305 (9th Cir. 1915). Had Congress attempted to fetter the Presidential power by the parole statute a constitutional question might be presented. We think it clear however that Congress had no intention of interfering with the President’s authority, and has not done so. This appears from the history of the parole statute itself, noted by the Attorney General in his opinion, Pardoning Power of the President, 41 Op. Att’y Gen. 251, 255 (1955). The Attorney General said:

As enacted in 1910, section 10 [of the parole statute] provided that nothing in the act “shall be construed to impair the power of the President of the United States to .grant a pardon or commutation in any case.” 36 Stat. 821, 18 U.S.C. (1946 ed.) 723. This provision does not appear in the 1948 revision of title 18 of the U.S.Code, and the Reviser’s Note to section 3570 of that title, dealing with Presidential remission of a sentence, states that the word “pardon” was omitted “as unnecessary in view of the pardoning power of the President under Const. Art. 2, § 2, cl. 1. ‘This power of the President is not subject to legislative control.’ Ex parte Garland, 1866, 4 Wall. 380.” [18 L.Ed. 366]

Turning to the Uniform Code of Military Justice, Art. 71(a), 10 U.S.C. § 871(a), in force at the time of Schick’s sentence, we find this provision:

No court-martiál sentence extending to death or involving a general or flag officer shall be executed until approved by the President. He shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit, and may suspend the execution of the sentence or any part of the sentence, as approved by him, except a death sentence. (Emphasis added). 64 Stat. 131.

The Uniform Code of Military Justice further provided, Art. 76, (now 10 U.S. C. § 876):

The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code . shall be final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in article 73 and to action by the Secretary of a Department as provided in article 74, and the authority of the President. (Emphasis added). 64 Stat. 132-333.

From the unambiguous language of these statutes it is apparent that Congress intended to, and did, preserve fully the commutation powers of the President by permitting him to “approve * * * such * * * commuted form of [a] sentence as he sees fit.” It is also apparent that Congress intended that the action of the President, in the exercise of those powers, should be final, conclusive and binding upon all departments, courts, agencies and officers of the United States. In short, the President’s action in this case was not inconsistent with the wishes of Congress as expressed in the parole statute.

Our conclusion on this branch of the case is in accord with the opinion of the Attorney General expressed in Pardoning Power of the President, supra, and with the decisions of the Supreme Court of California in Green v. Gordon, 39 Cal. 2d 230, 246 P.2d 38, cert. denied, 344 U.S. 886, 73 S.Ct. 187, 97 L.Ed. 686 (1952); and Ex parte Collie, 38 Cal.2d 396, 240 P.2d 275 (1952), cert. denied, Collie v. Heinze, 345 U.S. 1000, 73 S.Ct. 1145, 97 L.Ed. 1406 (1953). A like result was reached by the Circuit Court of Appeals for the Tenth Circuit in Hurt v. Moseley, No. 71-1307, decided in an unreported opinion September 13, 1971.

The appellant argues that confinement without the possibility of parole is cruel and unusual punishment. We think there is nothing to this contention. “By common understanding imprisonment for life is a less penalty than death.” Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927), (Holmes, J.). In light of the atrocious nature of Schick’s offense the commuted sentence is not out of proportion to his crime. We note further that the federal narcotics statute which precluded the possibility of parole in certain cases, 26 U.S.C. § 7237, was repeatedly upheld against attack on Eighth Amendment grounds. See for example, United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970); United States v. Lozaw, 427 F.2d 911 (2d Cir. 1970). This statute applied even in the cases of prisoners sentenced to serve as much as forty years. We also reject the contention that the commuted sentence denies the appellant the equal protection of the laws. Schick is in no worse position than others of his class who were convicted by a court-martial of premeditated murder and sentenced to death during a period when the death penalty was being enforced.

A contention not made in the appellant’s brief, but advanced at oral argument, is based upon the decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The argument runs as follows: Furman v. Georgia means that the provision for the death penalty in Article 118, UCMJ, 10 U.S.C. § 918 is invalid. Had this been the law at the time Schick was sentenced, he could have been sentenced only to imprisonment for life. 10 U.S.C. § 918. He then would have been committed to a United States Disciplinary Barracks or to a Federal Penitentiary. 10 U.S.C. §§ 858, 3661. In either event he would now be eligible to be considered for parole. 10 U.S.C. § 3663; 18 U.S.C. § 4202.

Had Schick been under a death sentence when Furman v. Georgia was decided that ruling would have required the excision of the constitutionally invalid sentence. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The flaw in Schick’s argument is that when the Furman case was decided he was not under a death sentence, and there was therefore nothing to excise. Indeed, as a matter of law, a final and effective sentence of death was never imposed upon Schick. Unlike the judgment and sentence of a court, the sentence imposed by the court-martial was not effective until approved by the President, whose action was by statute made a part of the sentencing process. See Article 71(a) UCMJ, 10 U.S.C. § 871 (a). The President did not approve the sentence.

Finally, we are mindful that a pardon or commutation “is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927). Such an action of the President, explicitly authorized by the Constitution and exercised in a lawful and proper manner, may not be reviewed by a court, and is not to be undone twelve years later upon the basis of ex post facto hypothesis and rationalization. See Ex parte Grossman, 267 U.S. 87, 121-122, 45 S.Ct. 332, 69 L. Ed. 527 (1924).

The judgment of the District Court is affirmed.

1 . Article 118 (now, 10 U.S.C. § 918) reads : Any person subject to this code who, without justification or excuse, unlawfully kills a human being, when he — •

(1) has a premeditated design to kill;

* X * * *

shall suffer death or imprisonment for life as a court-martial may direct. May 5, 1950, ch. 169 § 1 (Art. 118), 64 Stat. 140.