419 U.S. 256 (1974), 73-5677, Schick v. Reed

Docket Nº:No. 73-5677
Citation:419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430
Party Name:Schick v. Reed
Case Date:December 23, 1974
Court:United States Supreme Court

Page 256

419 U.S. 256 (1974)

95 S.Ct. 379, 42 L.Ed.2d 430




No. 73-5677

United States Supreme Court

Dec. 23, 1974

Argued October 23, 1974




Petitioner, sentenced to death, under Art. 118 of the Uniform Code of Military Justice, by a court-martial for murder, attacked the validity of a Presidential commutation to life imprisonment (under which petitioner had served 20 years) conditioned on petitioner's never being paroled. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, additionally rejecting petitioner's contention that this Court's intervening decision in Furman v. Georgia, 408 U.S. 238, required that petitioner be resentenced to a life term with the possibility of parole, the alternative punishment for murder under Art. 118.

Held: The conditional commutation of petitioner's death sentence was within the President's powers under Art. II, § 2, cl. 1, of the Constitution to "grant Reprieves and Pardons for Offenses against the United States." Pp. 260-268.

(a) The executive pardoning power under the Constitution, which has consistently adhered to the English common law practice, historically included the power to commute sentences on conditions not specifically authorized by statute. United States v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307. Pp. 260-266.

(b) Since the pardoning power derives from the Constitution alone, it cannot be modified, abridged, or diminished by any statute, including Art. 118, and Furman v. Georgia, supra, did not affect the conditional commutation of petitioner's sentence. Pp. 266-268.

157 U.S.App.D.C. 263, 483 F.2d 1266, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 268.

Page 257

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

In 1960, the President, acting under the authority of Art. II § 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick's sentence from death to life imprisonment, subject to the condition [95 S.Ct. 381] that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.

The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner's defense, and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956).

The case was then forwarded to President Eisenhower for final review as required by Art. 71(a) of the UCMJ,

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10 U.S.C. § 871(a). The President acted on March 25, 1960:

[P]ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner's] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall 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 U.S.C. 4201 et seq., 10 U.S.C. 3662 et seq., 10 U.S.C. 871, 874), or any acts amendatory or supplementary thereof.

App 35. The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment, he would have been eligible for parole consideration in March, 1969; the condition in the President's order of commutation barred parole at any time.

In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District

Page 259

Court granted the Board of Parole's motion for summary judgment and the Court of Appeals affirmed, unanimously upholding the President's power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2-1 vote petitioner's argument that Furman v. Georgia, 408 U.S. 238, decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. 157 U.S.App.D.C. 263, 483 F.2d 1266. We affirm the judgment of the Court of Appeals.


When the death sentence was imposed in 1954, it was, as petitioner concedes, valid under the Constitution of the United [95 S.Ct. 382] States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President's action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.

The essence of petitioner's case is that, in light of this Court's holding in Furman v. Georgia, supra, which he could not anticipate, he made a "bad bargain" by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence -- and remained alive -- until the Furman case was decided 18 years after that sentence was originally imposed.

It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner's commutation. However, petitioner's death sentence was not pending in 1972, because it had long since been commuted.

Page 260

The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that, even in 1960, President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.

In sum, petitioner's claim gives rise to three questions: first, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.


The express power of Art. II, § 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to "grant Reprieves and Pardons . . . except in Cases of Impeachment." Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse.1 Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There

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were other limits, but they were few in number and similarly specifically defined.2

At the time of the drafting and adoption of our Constitution, it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:

It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.

2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).

[95 S.Ct. 383] Various types of conditions, both penal and nonpenal in nature, were employed.3 For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of "banishment." This practice was never questioned despite the fact that British...

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