Clayton Palmer v. Richard L. Dugger, Robert A. Butterworth, Attorney General, Respondents ( 1987 )

EDMONDSON, Circuit Judge,

dissenting:

I think that a state’s duty, pursuant to the federal constitution’s equal protection clause,¹ to treat its prisoners uniformly concerning their periods of incarceration is limited to incarcerations during which the prisoner is subject to the authority of that same state. To me, the key concept in this case is federalism, by which I mean, among other things, the separation of powers and of obligations among the various states in respect to their own territories.

This seems to be a case of first impression in the federal appellate courts. None of the cases relied upon by today’s court is materially similar to this case. A reading of the cases cited in the court’s opinion reveals that those cases all involve a defendant within the jurisdiction of a state awarded credit for time served — either pretrial or post-sentence pending appeal — in the jails of that same state. I do not disagree with those cases, but I believe the case before us now is significantly different. Petitioner Palmer requests credit for time spent in the jails of a jurisdiction other than the one whose laws he violated. That fact, implicating the relations of states and the principles of federalism, prohibits a simple extension of Jackson v. Alabama, 530 F.2d 1231 (5th Cir.1976), and its progeny.

There is an important distinction in principle and in practice between the individual incarcerated in the state whose laws he is accused of violating and the individual in custody elsewhere awaiting extradition. The defendant incarcerated in the state where he will be tried, or where he has been tried and is awaiting appeal, is in the power of the sovereign that seeks to exact punishment for the infringement of its laws. It is this sovereign state, through its legislature, that has formulated the criminal laws and procedures to which the individual is subject. It is this sovereign state, through its judiciary, that has decided whether or not to set bail; decided how much bail to set, when it is granted; and decided when the accused will be tried or when his appeal will be heard. If the state itself subjects a defendant to a loss of liberty during delays, the state may choose, again through its legislature, to compensate the individual through credit for time served in its jails.²

The situation of the individual fighting extradition is very different. There are, therefore, good reasons for different treatment by the convicting state. First, he is not in the power of the state seeking ultimately to punish his transgression of its laws, but rather, under the dominion of another sovereign state. This is of paramount importance. Furthermore, he is present in that other state and absent from the state demanding his return not through any action of the demanding state but by his own volition. Second, it is this asylum state, not the demanding state, that will decide whether and how much bail to set pending settlement of the extradition question. Third, if the individual is obliged to remain in custody, the conditions of his incarceration in the asylum state may be very different from the conditions of imprisonment imposed in the demanding state.³ For these reasons, any requirement that the demanding state credit defendant with time served in the asylum state is an infringement on the demanding state’s sovereignty. The demanding state lacks that degree of control necessary to trigger an equal protection duty concerning this incarceration. See Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985) (demanding state does not violate equal protection by denying jail time credit for time defendant spent in asylum state’s jails contesting extradition), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787, reh. denied, 475 U.S. 1061, 106 S.Ct. 1290, 89 L.Ed.2d 597 (1986).

Furthermore, such a requirement would allow the individual to choose where and how he wished to be incarcerated. If one state structures its penal system to meet the bare essentials of federal constitutional rights, an individual should not be able to have the time spent in the jails of a more generously inclined state count towards the punishment exacted by the first state. To permit this is to infringe upon each state’s right to structure its penal system as it sees fit and the state’s right to impose the type of punishment or treatment (or both) it has decided is merited for the crime committed. See Brinkman v. Schubert, 422 F.Supp. 820, 831-32 (W.D.Wis.1976); Jackson, 530 F.2d at 1237 n. 8. Incidentally, such an allowance could also encourage fugitives from justice apprehended in other states to fight extradition, not because they believe they have a meritorious case, but simply because they wish to accrue jail time credit in more comfortable or convenient surroundings or to remain where they are for other reasons while still gaining jail time credit.

In equating petitioner Palmer with those defendants who find themselves in the jails of the convicting state, today’s court argues that because South Carolina held Palmer in custody for purposes of extradition at the behest of Florida, Florida cannot properly contend that it had no hand in this incarceration. This reasoning ignores the fact that South Carolina was acting as much for defendant Palmer as for the requesting state, Florida. If Florida had requested that South Carolina return Palmer for purposes of prosecution, Palmer, too, had made a request of South Carolina: that he not be extradited to face prosecution. That South Carolina, through its executive and judicial branches, acted as arbitrator of these claims does not transform its actions into those of Florida and does not signify that South Carolina was acting for Florida anymore than a tribunal acts for one or the other of two litigants before it. This rationale, then, does not serve to oblige Florida to adopt the actions of the asylum state and to allow credit for time served in another state.

It may be argued that the refusal to grant time credit may coerce a defendant to abandon any challenge to extradition, so that this refusal impermissibly burdens the right of opposing extradition.⁴ In response, I would only note that there are few, if any, “absolute rights.” The first amendment, for example, guarantees us all that Congress shall not “abridg[e our] freedom of speech;” by incorporating that right as regards the states, the fourteenth amendment guarantees that state governments also shall not constrain speech. Still, the public employee cannot exercise his free speech rights to the same extent as one not employed by the government and may, in fact, be discharged from his employment for speaking out. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Berry v. Bailey, 726 F.2d 670 (11th Cir.1984), cert. denied, 471 U.S. 1101, 105 S.Ct. 2326, 85 L.Ed.2d 844 (1985); 5 U.S.C.A. secs. 7324 and 7325 (known as the Hatch Act, stating in pertinent part, “An employee in an Executive agency or an individual employed by the government of the District of Columbia may not ... take an active part in political management or in political campaigns,” under penalty of discharge); McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517-18 (1892). Other rights are also limited. Municipal employees may, for example, properly be required to live within the city’s boundaries as a condition of their employment. McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 646 n. 6, 96 S.Ct. 1154, 1155 n. 6, 47 L.Ed.2d 366 (1976); Lorenz v. Logue, 611 F.2d 421 (2d Cir.1979); Andre v. Board of Trustees, 561 F.2d 48 (7th Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978).

Almost all serious decisions that adults make involve weighing the bad as well as the good consequences of each possible alternative. This is why decisionmaking is frequently so difficult: there is usually no totally good alternative. This is the nature of life; and, of course, the federal constitution does not outlaw all difficult choices. There are thus costs to the exercise of many, if not all, rights. When the issue of an accused’s mental competence is raised and an accused spends time undergoing tests in a mental hospital before trial, he will not necessarily receive time credit against an eventual sentence for the time spent in the mental hospital. See Makal v. Arizona, 544 F.2d 1030 (9th Cir.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). Such is the cost of ensuring that a defendant is able to participate and protect his own interests at trial. A defendant who successfully challenges his conviction may be retried and, at retrial, may be reconvicted and receive a heavier sentence than was originally imposed. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Such is the risk inherent in challenging the validity of the original criminal trial.

In the present situation, there is also a cost to fighting extradition and resisting entry into the power of the demanding state: the defendant may be obliged to spend time in the jails of the asylum state while that state decides the extradition matter. This is not punishment for a crime. The individual who successfully challenges extradition will go on his way; the unsuccessful individual will be returned to the demanding state. The time spent in the jails of the asylum state relates, not to the crime for which the demanding state was seeking the defendant, but to the process of extradition itself: for both the successful and unsuccessful, the time in custody is a cost of opposing extradition, indeed, a method by which the individual sought backs the validity of his claim, if necessary. A successful individual who was incarcerated pending the extradition decision receives no compensation for that time from either the asylum or the demanding state. By the same token, the unsuccessful individual who has gambled and lost cannot properly demand time credit toward his sentence for time spent in jail in another state relating to a matter tangential to the crime for which he is to be punished. See United States v. Mitchell, 556 F.2d 371, 382 (6th Cir.) (defendant’s imprisonment of twenty-three months on civil contempt charge for refusal to give voice exemplar to grand jury was not to be credited toward defendant’s sentence in connection with conspiracy charge of which he was ultimately convicted; “the confinement was imposed in connection with the civil contempt and not in connection with the criminal offense of conspiracy”), cert. denied, 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed. 2d 284 (1977).

In the present case, petitioner Palmer spent some four months in South Carolina jails not because Florida sought him as a fugitive from justice, but because he chose to oppose his extradition to Florida.⁵ In this way, even though he was apparently too poor to post bail in South Carolina, Palmer himself held the keys to his South Carolina prison cell. When he finally came under Florida’s authority, he was not treated differently by Florida because of his lack of wealth; he was denied South Carolina jail time credit because — as he had chosen — he was not under Florida’s control during the pertinent time. Palmer was not constrained to a single course of action. Instead, he had a choice: he could fight extradition and, as a cost of that fight, risk spending time in South Carolina prisons for which he would receive no jail time credit or he could return to Florida and begin amassing jail time credit prior to his trial. See generally Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir.1983) (Illinois Supreme court rule that admitted foreign-licensed attorneys to Illinois bar if they had practiced in their licensing state for at least five consecutive years of prior seven years did not infringe upon the right to travel; foreign-licensed attorney could either meet the requirement or take the Illinois bar exam); Verner v. Colorado, 533 F.Supp. 1109, 1118-19 (D.Colo.1982) (Colorado rule that all attorneys and judges pursue continuing legal education did not constitute involuntary servitude; individuals could choose a) to attend class or b) not to attend and to forego the practice of law), aff'd, 716 F.2d 1352 (10th Cir.1983), cert. denied, 466 U.S. 960,104 S.Ct. 2175, 80 L.Ed.2d 558 (1984); Flood v. Kuhn, 443 F.2d 264, 268 (2d Cir.1971) (no claim of involuntary servitude lies because of baseball’s reserve system, obliging player to negotiate with first team that reserves player: player can abide by the rule or decide not to play), aff'd, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed. 2d 728 (1972).

Consequently, I believe that the decision of whether or not to allow jail time credit for jail time served in other jurisdictions is a matter of state sovereignty that is properly left for decision to the state, itself. Florida certainly has the obligation to give persons within its jurisdiction the equal protection of the laws. But Palmer chose to stay within the jurisdiction of South Carolina and outside of Florida’s jurisdiction for months. His incarceration during that time triggers no equal protection duties on Florida’s part. The question of equal protection does not arise until individuals find themselves within the control of the state that is to be charged with the duty of equal protection. Thus, Florida can have a valid practice of allowing prisoners in Florida no jail time credit for incarceration outside of Florida’s control.

The words “within its jurisdiction” in the equal protection clause recognize the limit of state powers and, as a corollary, the limit of state duties in our federal system. The court’s decision in this case overlooks the differences between a federal and a national system of government; its balance of the defendant’s rights and the demanding state’s rights is thus, to my view, improperly skewed. Its balancing gives no weight to the right of each state to control the nature of the punishment for violation of its laws and no weight to the fact that prisoners fighting extradition are not then within the power of the demanding state.

“[Ojnce the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” Williams v. Illinois, 399 U.S. 235, 241-42, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970). This worthy principle has no application in petitioner Palmer’s case. The time Palmer spent incarcerated in South Carolina was not time that Florida imposed on Palmer in excess of the maximum sentence for his crime: it was time required by South Carolina pending extradition and served in South Carolina jails because Palmer did not wish to return to Florida. Florida has subjected Palmer only to the maximum sentence it has imposed for his crime. It should not be obliged to give petitioner credit for time imposed by another state.

Accordingly, I respectfully dissent.

1 . "No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, sec. 1.

2 . As the majority notes, there is no general absolute federal constitutional right to credit on sentence for prejudgment detention in all circumstances. Jackson v. Alabama, 530 F.2d at 1235 (quoting Gremillion v. Henderson, 425 F.2d 1293, 1294 (5th Cir.1970)); Cobb v. Bailey, 469 F.2d 1068, 1070 (5th Cir.1972). Florida did, however, decide to permit jail time credit as a matter of legislative grace. Section 921.161(1) of the Florida Statutes provides a defendant with credit for all pretrial time spent in the county jail. The Florida Supreme Court later construed that statute to mean that while the sentencing judge must allow credit for time spent in Florida county jails, it falls within the judge’s discretion whether or not to allow a defendant credit for time spent in the jails of other jurisdictions awaiting transfer to Florida. Kronz v. Florida, 462 So.2d 450 (Fla.1985).

3 . Even inside a single state, the state can properly take into account the place of a prisoner’s incarceration and the state’s particular penological goals when granting certain types of time credit to the prisoner. In McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), the Court found no violation of equal protection by New York's law which allowed good time credit toward parole eligibility for time spent in state prisons, but not for time spent in county facilities. This meant that the individual unable to make bail who spent four months in a county facility awaiting trial would receive jail time credit for those months, but would not amass good time credit during that period. Thus, the indigent individual sentenced to one year in prison would spend eight months in state prison, beyond his four-month pretrial incarceration, but could receive good time credit only for those eight months in state custody. The individual receiving the same sentence but who was able to post bond while awaiting trial would spend twelve months in state custody and could receive twelve months worth of good time credit: his sentence would thus be shorter than that of the indigent defendant. Despite this result, the Court found no constitutional violation because there existed a rational basis for the state’s calculation of good time credit. State facilities offered rehabilitation programs, county facilities did not; the good time credit law rewarded a prisoner’s progress toward rehabilitation, and thus the state's distinction between time in state and county jails was valid.

4 . For background, see Roberts v. Reilly, 116 U.S. 80, 90, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885) (individuals have a federal right to challenge extradition through a habeas corpus proceeding; prisoners held for extradition are held pursuant to United States law); Crumley v. Snead, 620 F.2d 481, 485 (5th Cir.1980); Payne v. Burns, 707 F.2d 1302 (11th Cir.1983). After the governor of the asylum state signs the extradition warrant, the prisoner may bring a habeas action to challenge the validity of the asylum state’s custody. This is an action-between the prisoner and the asylum state custodians, to which the demanding state apparently need not be a party.

No one contends that Palmer was denied the right to resist extradition. The issue here is whether the federal Constitution actually requires that Palmer be allowed to invoke the asylum state’s (South Carolina’s) law to fight extradition, avoiding Florida’s control for months, and still be able to compel Florida to give him jail time credit for those very same months just as if he had been under Florida’s control in a Florida jail at the time.

5 . In situations where an individual is held in state custody and sought also on a federal charge, "credit for state incarceration is given pursuant to 18 U.S.C. sec. 3568 only when [state incarceration] ‘was exclusively the product of such action by federal law-enforcement officials as to justify treating the state jail as the practical equivalent of a federal one.'" United States v. Dovalina, 711 F.2d 737, 740 (5th Cir.1983) (quoting Ballard v. Blackwell, 449 F.2d 868, 869 (5th Cir.1971)). In the instant case, detention in South Carolina was not due solely to the charge pending against Palmer in Florida; it was due to his opposition to extradition.