Rogers v. Britton, PB-C-77-0071.

• Decision Date: 27 September 1979
• Docket Number: No. PB-C-77-0071.,PB-C-77-0071.
• Citation: 476 F. Supp. 1036
• Parties: Harold Eugene ROGERS, Petitioner, v. R. G. BRITTON and James Mabry, Respondents.
• Court: U.S. District Court — Eastern District of Arkansas

476 F. Supp. 1036

Harold Eugene ROGERS, Petitioner, v. R. G. BRITTON and James Mabry, Respondents.

No. PB-C-77-0071.

United States District Court, E. D. Arkansas, Pine Bluff Division.

September 27, 1979.

James I. Meyerson (N.A.A.C.P.), Nathaniel R. Jones, New York City (N.A.A.C.P.), George Howard, Jr., Pine Bluff, Ark., George E. Van Hook, El Dorado, Ark., for petitioner.

E. Alvin Schay and Jackson M. Jones, Asst. Attys. Gen., Little Rock, Ark., for respondents.

OPINION

ARNOLD, District Judge.

This is a habeas corpus case challenging petitioner's conviction of first-degree rape and the sentence of life imprisonment imposed in accordance with the verdict of the jury. On March 7, 1979, this Court filed an opinion upholding the validity of the conviction. Rogers v. Britton, 466 F.Supp. 397 (E.D. Ark.1979). The Court did not reach the question of the constitutionality of the sentence under the Eighth and Fourteenth Amendments. The Court held that petitioner had not exhausted his State remedies with respect to that issue. Petitioner was directed to file an application for post-conviction relief with the Supreme Court of Arkansas. The petition was held in this Court for possible further action pending the outcome of petitioner's application to the Supreme Court.

Petitioner then applied to the Supreme Court of Arkansas for leave to proceed under R.Crim.P. 37.2(a). That Court denied permission in an opinion issued on June 11, 1979. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979) (per curiam) (en banc). The Court held that this Court had been mistaken in characterizing petitioner's sentence as "life imprisonment without parole." It pointed out that petitioner's sentence was life imprisonment simpliciter, and that, while the sentence was not initially subject to parole because of Ark.Stat.Ann. § 43-2807, it could later become subject to parole if the Governor should commute it to a term of years by executive clemency. The Court then rejected petitioner's argument that, under the circumstances of this case, a jury not given the benefit of any standards or guidelines could not validly impose a life sentence. The Court did not undertake to analyze the system of jury sentencing, or justify the absence of standards as a matter of due process. It simply held that the sentence was valid because it was "within the statutory limits . . .. The constitutional prohibition of cruel and unusual punishment is directed toward the kind of punishment, not its duration. . . . As we stated in our original opinion, Rogers v. State, 257 Ark. 144, 156, 515 S.W.2d 79, 87 (1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975) . . . `if a sentence is within the limits established by the legislature, it is valid even though it is insisted that the punishment is unconstitutionally excessive.'" 265 Ark. at 958, 582 S.W.2d at 13. Cases involving the death penalty were distinguished on the ground that the death penalty is unique. "If the penalty assessed against petitioner is too severe under the facts of the case, it is a matter that addresses itself to executive clemency and not to this Court." Id. at 961, 582 S.W.2d at 15.

Petitioner, having thus clearly exhausted his State remedies, returned to this Court. On June 26, 1979, he filed a supplemental application for relief, again contesting the validity of his sentence under the Eighth and Fourteenth Amendments. Two briefs in support of the application have been filed, one on July 16, 1979, and one on September 5, 1979. Respondents have filed no opposition, apparently desiring to rest on their previous briefs, which fully address the issues.

It is now this Court's duty to decide the question on which it earlier deferred to the Supreme Court of Arkansas. The facts of the case recited in this Court's previous opinion will not be repeated in extenso. Suffice it to say that petitioner, a 17-year-old black, was tried and convicted for the forcible rape of a 21-year-old white woman. No permanent injury, physical or psychological, was done to the victim apart from the rape itself, so far as this record discloses. Petitioner had no prior criminal record. The jury was given no instructions or standards to guide its sentencing discretion. The jury fixed punishment at life imprisonment, and the trial court imposed sentence accordingly.

A word should be said at the outset about this Court's earlier characterization of the sentence as life without parole. The Supreme Court of Arkansas is the final and authoritative arbiter of questions of the interpretation of Arkansas statutes. Its decisions on such questions are binding on this and every other court. It points out that the law of Arkansas does actually create the punishment of life without parole, but that this phrase is limited to capital cases. In such cases, a defendant sentenced to life without parole may never be released except by executive clemency alone. Even if the sentence is commuted by the Governor to a term of years, the defendant does not become eligible for parole, however much time he may have served. See Ark.Stat. Ann. §§ 41-4701, -4702, -4703, -4707 (Supp. 1973) (Act 438 of 1973). Commutation cannot effect the release of a prisoner unless the commutation is to time served. Otherwise, the defendant must serve out the full term of years to which his sentence has been commuted. The range of punishments available for the crime of rape (which is no longer a capital offense) is somewhat different. At the time of Rogers's conviction, the sentence for first-degree rape could be anywhere from 30 years to life. If the sentence is life (as it was here), it is not subject to parole unless executive clemency is first obtained. Ark.Stat. Ann. § 43-2807(b)(1). If the sentence is commuted, and if a defendant has served one-third of the newly fixed term of years, the defendant becomes immediately eligible for parole.

It is quite true, therefore, that petitioner's sentence was not "life without parole" in the same sense that the Arkansas capital-felony statutes use that phrase. A defendant convicted of a capital felony and sentenced to "life without parole" can never be paroled. He can be released only if he is pardoned or if he serves out the entire term of years to which his sentence has been commuted. A defendant convicted of rape and sentenced to "life," however, can be released on parole if he is first made eligible by executive commutation. The distinction undoubtedly exists, but the fact remains that this petitioner must serve the rest of his natural life in prison unless some Governor favors him with some form of clemency. However frequent commutations may be in practice, the fact remains that they are by definition acts of grace, bestowed on no fixed basis and according to no ascertainable standards. They are manifestations of mercy, not of the operation of law. The possibility of their occurrence in any given case is not measurable. For federal constitutional purposes, therefore, it is fair to say that in petitioner's case life means life.

Was the sentence validly imposed in this case? Petitioner does not argue, and this Court would not hold if he did, that life imprisonment for rape is per se cruel and unusual punishment. Rape is a violation of the person that must be abhorrent to everyone, and it is deserving of the severest censure. There are cases of rape for which life imprisonment is entirely appropriate, even required by justice. Indeed, a legislature might make a judgment that rape in and of itself is so heinous that it should always be punished by life imprisonment. This Court is not saying that such a judgment would be impermissible under the Federal Constitution. There is no occasion to speculate on that question, because the General Assembly of Arkansas does not view all rapes as equally reprehensible, not even all first-degree rapes. At the time of Rogers's trial, a broad range of punishments was available—30 years to life. The General Assembly obviously thought that some rapes were more blameworthy than others, and that juries would make the appropriate distinctions in fixing punishments case by case.¹

The rub is that the jury in this case was given no guidance in making these distinctions. It was left completely at large, as this Court's prior opinion notes. The jury simply announced its verdict as to punishment, giving, of course, no reasons, and was then discharged—an ad hoc body whose reasons for imposing the maximum sentence on petitioner can never be known, and whose decision cannot be rationalized even by reference to some set of standards that were presumably applied. For the legislature has provided no standards. We cannot know, and the jury could not know, what weight, if any, the General Assembly might have assigned to the defendant's youth, the fact that he used a gun, the absence of aggravated injury, the lack of a prior record, or any other aggravating or mitigating circumstances. We do know that petitioner could have received no greater punishment had he been of full age, had the victim been maimed for life, and had petitioner been guilty of previous rapes.

Some light is thrown on the problem by death-penalty cases like Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). There was no opinion of the Court, but its judgment was announced in an opinion by Mr. Justice Stewart, joined by Powell and Stevens, JJ. The principles announced in this opinion controlled the outcome in Gregg and several companion cases, so lower courts can properly look to the opinion for guidance. The opinion is significant for present purposes because it discusses in full the question of sentencing discretion:

. . . 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.

428 U.S. at 189,...