Johnson v. Rockefeller

• Decision Date: 09 October 1973
• Docket Number: No. 72 Civ. 1699.,72 Civ. 1699.
• Citation: 365 F. Supp. 377
• Parties: Calvin JOHNSON et al., Plaintiffs, v. Nelson A. ROCKEFELLER, Governor, State of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

365 F. Supp. 377

Calvin JOHNSON et al., Plaintiffs, v.Nelson A. ROCKEFELLER, Governor, State of New York, et al., Defendants.

No. 72 Civ. 1699.

United States District Court, S. D. New York.

Argued March 8, 1973.

Decided October 9, 1973.

Herman Schwartz, Buffalo, N. Y., (Norman Rosenberg, Edward Koren, New York Civil Liberties Union, Buffalo, N. Y., Melvin Wulf, American Civil Liberties Union, New York City, on the brief), for plaintiffs.

Maria L. Marcus, Asst. Atty. Gen. (Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., of the State of New York, Albany, N.Y., on the brief), for defendants.

Before HAYS, Circuit Judge, and BRYAN and LASKER, District Judges.

HAYS, Circuit Judge:

This class action challenged the constitutionality of New York Civil Rights Law §§ 79and79-a(McKinney's Consol. Laws, c. 6, Supp. 1972) as they stood on the date of argument, March 8, 1973.¹The plaintiffs sought injunctive and declaratory relief against the enforcement

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of those statutes insofar as they deprived convicted and incarcerated felons of (1) access to the state courts to sue for money damage claims and (2) the right to marry.The named plaintiffs in this suit are all inmates in the Green Haven Correctional Facility in New York State and are serving terms up to and including life imprisonment.All of the plaintiffs except for Butler have claims for either personal injuries or property damage which they were prohibited from prosecuting in the state courts by §§ 79and79-a of the New York "civil death" provisions before the recent amendments.Plaintiff Butler, who is serving a life term, has been denied the right to marry — another aspect of "civil death" — based upon § 79-a of the state Civil Rights Law.

The New York statutes at issue herein were challenged as being violative of the Fifth, Eighth, Ninth and Fourteenth Amendments as well as 42 U.S.C. § 1983.Jurisdiction was based on 28 U.S.C. § 1343.

The convening judge, D.C., 58 F.R.D. 42, dismissed the complaint against the State of New York and against Louis Lefkowitz, the Attorney General of the State of New York.He also determined that the class action requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure had been met.

We hold that the action brought on behalf of plaintiffs seeking access to the courts to sue for money damages has been made moot by the recent passage of amendments to §§ 79and79-a of the New York Civil Rights Law.See footnote 1.The amendments do not affect the claims of plaintiff Butler and the class he represents.We therefore dismiss as moot the action of all of the plaintiffs except Butler and we proceed to consider whether the ban on marriage applied to prisoners serving life sentences in state prisons in New York under § 79-a is violative of the Constitution of the United States.

Plaintiff Butler who is serving a life term in the New York State prison system complains that he is denied the right to marry by the civil death provisions of New York State Civil Rights Law § 79-a.

In actuality the effect of the statute is to deny to Butler only the right to go through the formal ceremony of marriage.Those aspects of marriage which make it "one of the `basic civil rights of man,'"Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010(1967) — cohabitation, sexual intercourse, and the begetting and raising of children — are unavailable to those in Butler's situation because of the fact of their incarceration.The statute adds nothing of significance to the effects of such incarceration.

We can perceive no merit in plaintiffs' claim of denial of equal protection and due process.Insofar as the deprivation of the right to participate in the ceremony of marriage can be considered as imposing punishment in addition to incarceration it is a penalty which is well within New York's power to prescribe.A state has considerable freedom within the limits of the Eighth Amendment in determining what form punishment for crime shall take.Deprivation of physical liberty is not the sole permissible consequence of a criminal conviction.SeeGreen v. Board of Elections, 380 F.2d 445(2d Cir.1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840(1968)(upholding statute denying convicted felon the right to vote);Fincher v. Scott, 411 U.S. 961, 93 S.Ct. 2151, 36 L.Ed.2d 681(1973), aff'g mem., 352 F.Supp. 117(M.D.N.C.1972)(3-judge court)(same);Beacham v. Braterman, 396 U.S. 12, 90 S. Ct. 153, 24 L.Ed.2d 11(1969), aff'g mem., 300 F.Supp. 182(S.D.Fla.1969)(3-judge court)(same).

Plaintiffs argue that the penological goal of rehabilitation is not served by prohibiting marriage.But it is not for us, whatever our personal views, to choose among the various possible penological goals or to pass upon the wisdom of penal legislation aimed at deterrence or even retribution.

The state can also rely on its general power over the institution of marriage to justify its ban on the marriage of life-term prisoners.As the Supreme Court has said:

"The legislature prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution."

Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654(1888).²

The state's interest in marriage surely extends to the power to deny the right to marry to prisoners incarcerated for life who cannot be expected to perform the duties and obligations imposed on a husband by the state's laws relating to marriage, such as, the duty to support wife and children, N.Y. Family Court Act §§ 412,413 (McKinney Supp. 1972).

Plaintiff Butler makes a claim under the Ninth Amendment asserting that the prohibition against marriage is violative of his constitutional right of privacy.However, we need not determine the nature of that right or the application to it of the Ninth Amendment because we are here dealing with a situation where the basis of the challenge to state power is the mere formal ceremony of marriage.That ceremony has none of the elements of marital privacy which bring the marriage relationship under constitutional protection.SeeGriswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L.Ed.2d 510(1965).

Although there has been no definitive interpretation of what constitutes "cruel and unusual" punishment, we are of the opinion that neither under the decisions of the Supreme Court, nor of this circuit, have the plaintiffs shown that the New York civil death provisions violate the Eighth Amendment.The prohibition against participating in the marriage ceremony does not subject a life-term prisoner to a "fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment,"Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630(1958), nor is it "barbarous" or "shocking to the conscience,"Sostre v. McGinnis, 442 F.2d 178, 191(2d Cir.1971)(en banc),³cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254(1972).

The complaint is dismissed.

LASKER, District Judge(concurring in part and dissenting in part).

I agree with the majority that § 79-a's marriage bar may be regarded as a punishment,¹ and if so is constitutionally "within New York's power to prescribe."I therefore concur in holding the statute is constitutional.

I disagree, however, with the majority's characterization of the deprivation imposed by § 79-a, that is, that "in actuality the effect of the statute is to deny to Butler only the right to go through the formal ceremony of marriage."This formulation appears to approve the State's argument that marriage for or to a life-termer is no marriage at all, because it does not permit cohabitation and procreation.Although the tangible elements of marriage thus emphasized are undoubtedly of central importance in ordinary circumstances, nevertheless, the non-tangible devotion of man and wife is certainly of equal — many would say higher — value.By barring Butler's marriage, the state deprives him and his wife-to-be of the critical emotional support to be found in the formalized and symbolic relation itself.The State prevents them from committing themselves to each other.The importance of these interests has recently been recognized by the Commissioner of Correctional Services, who has said:

"A major Departmental objective is to foster ties to the community that will help create stability in the inmate's personal life.Accordingly, the permission of the Commissioner will no longer be required in a case where an inmate wishes to marry, and the Department will provide appropriate assistance to inmates who wish to become married."Administrative Bulletin #107, from Peter Preiser, Commissioner, to Superintendents of Correctional Facilities and Camps, dated August 13, 1973.

I disagree with the majority, therefore, that the "statute adds nothing of significance to the effects of such incarceration."

Furthermore, the formalized commitment is vital not only as an emotional support during the period of incarceration, even if it be actually for life, but also as a solemn undertaking to the panoply of the marriage relationship in the event of the prisoner's release by parole or commutation, possibilities which become actualities in a significant number of cases.It is no answer that in such an event the parties would be free to marry, for the passage of years without the existence or possibility of even a formalized emotional commitment will almost certainly mean that the wife-to-have-been will have built her life elsewhere.

I differ, too, from the majority's view that the State's power to regulate the institution of marriage justifies the ban on marriage of life-term prisoners.Without denying...