Brown v. Parratt, 76-1861

• Decision Date: 13 June 1977
• Docket Number: No. 76-1861,76-1861
• Citation: 560 F.2d 303
• Parties: Monroe BROWN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 303

560 F.2d 303

Monroe BROWN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal and Correctional

Complex, Appellee.

No. 76-1861.

United States Court of Appeals,

Eighth Circuit.

Submitted April 15, 1977.

Decided June 13, 1977.

Don Thompson, Prisoner Legal Services Project, Lincoln, Neb., for appellant; Peter T. Hoffman, Lincoln, Neb., on the brief.

C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., for appellee; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on the brief.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Monroe Brown, an inmate of the Nebraska Penal and Correctional Complex, appeals from the district court's ¹ denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Brown was convicted of robbery after a jury trial in the district court of Douglas County, Nebraska. Upon the state's motion, Brown was found to be an habitual criminal pursuant to Nebraska's habitual criminal statute, ² and received an enhanced sentence of ten years imprisonment. The Supreme Court of Nebraska affirmed Brown's conviction. State v. Brown, No. 38942, Supreme Court of Nebraska.

Having exhausted his state remedies, Brown sought habeas corpus relief in the United States District Court for the District of Nebraska. He alleged that the Nebraska habitual criminal statute under which he was sentenced was unconstitutional because it constituted cruel and unusual punishment. After an evidentiary hearing and the submission of the state court record, the district court rejected Brown's contentions and dismissed his petition for a writ of habeas corpus. Brown v. Parratt, 419 F.Supp. 44 (D.Neb.1976). Brown appeals that decision.

The sole issue on this appeal is whether the Nebraska habitual criminal statute constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. First, Brown contends that because the prosecuting attorney has unlimited discretion to prosecute under the habitual criminal statute, the resulting sentence is cruel and unusual punishment. Brown's argument in this regard is identical to the argument raised in Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977). ³ In Martin, the petitioner contended that such unfettered discretion amounted to such arbitrariness and capriciousness as to constitute cruel and unusual punishment. This court rejected that contention. Martin v. Parratt, supra, 549 F.2d at 52. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). Opportunities for discretionary action are inherent in the prosecution of criminal cases. The district court noted that "Other recidivist offenders may have legitimately avoided enhanced penalties by the decision of state authorities to afford mercy or by plea bargaining, both of which are unquestionably constitutional forms of prosecutorial discretion." Brown v. Parratt, supra, 419 F.Supp. at 48 (footnote omitted). Accordingly, we find Brown's first argument unpersuasive. Second, Brown contends that the application of the Nebraska habitual criminal statute during the relevant time period was so infrequent and arbitrary as to be "freakish" within the meaning of Gregg v. Georgia, supra, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). According to Brown, the statute is unconstitutional as applied to him because such "freakish" application of the statute constitutes cruel and unusual punishment. He bases this argument on statistics for 1970-72 in Douglas County, which show that 104 defendants were eligible to be charged as habitual criminals, 14 were actually charged, and 3 were deemed habitual criminals.

The Eighth Amendment's proscription of cruel and unusual punishment is not limited to the death penalty. However, the freakishness rationale which implicates the Eighth Amendment has been discussed only in the context of the death penalty. See Gregg v. Georgia, supra, and Furman v. Georgia, supra. The question then becomes whether the standard of freakishness should be applied in non-death penalty cases, such as the instant case.

We conclude that the Furman rationale of freakishness is limited primarily to cases involving the death penalty. The following language indicates that Furman was based, at least in part, on the uniquely grave nature of the death penalty:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. * * * (T)he petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. * * * I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Furman v. Georgia, supra, 408 U.S. at 306, 309-10, 92 S.Ct. at 2760, 2762-2763 (footnote omitted) (Stewart, J., concurring). Our conclusion is further supported by Gregg :

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. * * *

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Gregg v. Georgia, supra, 96 S.Ct. at 2932 (emphasis added). Consequently, an infrequent application of the Nebraska habitual criminal statute does not render the statute unconstitutional as cruel and unusual punishment. We therefore need not reach the question of whether it was so infrequently imposed in Douglas County, Nebraska, that it could be deemed "freakish." Accordingly, we find the statute was not violative of the Eighth Amendment as applied to Brown.

Affirmed.

HEANEY, Circuit Judge, concurring:

In Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977), this Court held that the Nebraska habitual criminal statute does not "(give) the prosecutor unreviewable discretion to control petitioner's sentencing, thereby denying him (the defendant) due process and equal protection of the laws in violation of the fourteenth amendment." In my judgment, Martin was incorrectly decided and should be reversed by this Court. I recognize that this panel must adhere to the decision in Martin but the Court en banc should change that result when the opportunity arises. ¹

The Habitual Criminal Statute of Nebraska ² provides that anyone charged and convicted as a habitual criminal must be sentenced to a minimum term of ten years. This result obtains even when the trial court feels, as it did here, that the sentence is grossly disproportionate to the seriousness of the triggering offense. ³ The trial court may place the convicted defendant on probation but it must impose the minimum required by the statute.

Nebraska is the only state in the Eighth Circuit which vests such broad sentencing discretion in its prosecuting attorneys. ⁴ Arkansas, ⁵ South Dakota ⁶ and Minnesota ⁷ authorize, but do not require, the trial court to impose additional penalties for habitual felony violators. Iowa mandates an additional sentence for habitual criminals but permits the Court to determine the length of the sentence. ⁸ Missouri leaves the trial courts with considerable discretion. ⁹ While the Supreme Court has considered a number of cases involving the constitutionality of recidivist statutes, it has not decided the question of whether such statutes are unlawful because they give virtually unreviewable sentencing discretion to prosecuting attorneys.

Professor Kenneth Culp Davis has noted in his commentary Discretionary Justice: A Preliminary Inquiry (1969):

(J)udicial intrusion into the prosecuting function is contrary to the settled judicial tradition. But why is it? Is it because the tradition became settled during the nineteenth century when courts were generally assuming that judicial intrusion into any administration would be unfortunate? Is it because the tradition became settled while the Supreme Court was actuated by its 1840 remark that "The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief"? Is it because the tradition became settled before the courts made the twentieth-century discovery that the courts can interfere with executive action to protect against abuses but at the same time can avoid taking over the executive function? Is it because the tradition became settled before the successes of the modern system of limited judicial review became fully recognized?

On the basis of what the courts know today about leaving administration to administrators but at the same time providing an effective check to protect against abuses, should the courts not take a fresh look at the tradition that prevents them from reviewing the prosecuting function? Throughout the governmental system, courts have found that other administrative or executive functions are in need of a judicial check, with a limited scope of review. The reasons for a judicial check of prosecutors' discretion are stronger than for such a check...