Sero v. Oswald

• Decision Date: 25 October 1972
• Docket Number: No. 72 Civ. 778.,72 Civ. 778.
• Citation: Sero v. Oswald, 351 F.Supp. 522 (S.D. N.Y. 1972)
• Parties: Lois SERO et al., Plaintiffs, v. Russell G. OSWALD, Commissioner of New York State Correctional Services, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

351 F. Supp. 522

Lois SERO et al., Plaintiffs, v. Russell G. OSWALD, Commissioner of New York State Correctional Services, et al., Defendants.

No. 72 Civ. 778.

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

October 25, 1972.

New York Civil Liberties Union, Buffalo, N. Y. (Herman Schwartz, Edward I. Koren, Buffalo, N. Y., of counsel), American Civil Liberties Union, New York City (Melvin L. Wulf, New York City, of counsel), for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, for defendants (Michael Colodner, Asst. Atty. Gen., of counsel), for defendants.

MEMORANDUM

LASKER, District Judge.

Plaintiffs, Lois Sero, Vanessa Carney and Rita Varner, are inmates of Bedford Hills Correctional Facility. Defendants are the Commissioner of New York State Correctional Services, the warden of Bedford Hills and the Governor of the State. Although convicted of crimes which carry a maximum sentence for adults of one year or less, plaintiffs are serving reformatory terms of up to four years pursuant to Sections 75.00 and 75.10, subd. 1 of the New York Penal Law and are deprived of the good behavior allowances provided non-reformatory inmates by §§ 803 and 804 of the New York Correction Law. They allege that these provisions operate to deprive them of their right to equal protection of the law and due process and constitute cruel and unusual punishment. They seek the convening of a three-judge court pursuant to 28 U.S. C. § 2281ff, as well as declaratory, injunctive and miscellaneous relief.¹ Defendants cross-move to dismiss the complaint.² Jurisdiction is predicated on 28 U.S.C. §§ 1343(3), (4), 2201 and 2281.

The district court's role in determining whether a three-judge court should be convened pursuant to 28 U. S.C. § 2281 is limited to deciding whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). These requirements, that the constitutional attack be against the state statute's general application and that a state officer be named as a defendant (Ince v. Rockefeller, 290 F. Supp. 878, 881 (S.D.N.Y.1968)), are met here, and the complaint alleges a basis for equitable relief. The sole issue which remains as to each of these statutes is whether the complaint raises a substantial constitutional issue. Despite the interrelationship between the statutes, we consider them separately for the sake of clarity.

I

New York Penal Law §§ 75.00 and 75.10, subd. 1.

Section 75.00 of the Penal Law provides that, when sentencing a person aged 16 to 21 ("young adults"),

the court may, in lieu of any other sentence of imprisonment authorized by this title, impose a reformatory sentence of imprisonment. This shall be a sentence to imprisonment for a period of unspecified duration which shall commence and terminate as provided in section 75.10 and the court shall not fix the minimum or maximum length of the period.

Section 75.10, subd. 1 provides that a reformatory sentence terminates upon discharge of the inmate by the board of parole or the expiration of four years from commencement of the term, whichever is earlier. The practice commentary to Section 75.10, subd. 1 states that "the purpose of a reformatory sentence is to provide education, moral guidance and vocational training for young offenders who are badly in need of such instruction and counsel." McKinney's Consolidated Laws of New York, Penal Law, p. 156.

Plaintiffs claim that these provisions are unconstitutional on their face because 1) they violate the equal protection clause of the Fourteenth Amendment by discriminating against them (as compared to adults) without a rational or compelling basis; 2) they violate procedural due process because they do not provide for a separate hearing before the imposition of a reformatory sentence and because they establish no standards to guide the sentencing judge, thus permitting abuses of discretion and making appellate review impossible; and 3) they violate the cruel and unusual punishment clause of the Eighth Amendment and substantive due process by allowing the imposition of a sentence with a possible maximum of four years for minor offenses. Plaintiffs contend, further, that the provisions are unconstitutional as applied because the treatment which is the justification for reformatory sentences is not in fact given to persons serving them.

Defendants oppose the convening of a three-judge court and cross-move to dismiss the complaint on several grounds. First, they claim that this action, which was brought pursuant to 42 U.S.C. § 1983, should have been brought as a habeas corpus action to be heard by a single judge after exhaustion of state remedies. Second, they argue that case law clearly upholds the constitutionality of the challenged provisions on their face and, accordingly, no substantial federal question is raised. Third, they contend that a three-judge court is not required to challenge the application of a statute which is constitutional on its face and that such a challenge cannot be brought as a class action. Finally, they maintain that the sentencing procedures do not deny reformatory inmates due process since discretion and flexible procedures are accepted characteristics of the sentencing process.

Defendants' contention that a suit such as this should have been brought as a habeas corpus action on behalf of the individual named plaintiffs before a single judge (after exhaustion of state remedies) was disposed of in Gesicki v. Oswald, 336 F.Supp. 365 (S.D.N.Y.1971) (convening opinion) and 336 F.Supp. 371 (S.D.N.Y.1971) (three-judge court), affirmed, 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972). In Gesicki, plaintiffs challenged their confinement under the Wayward Minor Act in a suit brought pursuant to both the Civil Rights Act and the Habeas Corpus Act. The convening court found that exhaustion of remedies was not required since the state courts had recently and unambiguously upheld the constitutionality of the challenged statute. 336 F.Supp. at 367-368.

The case before us is in much the same posture as Gesicki. Lois Sero and Rita Varner, and another person not a named plaintiff, have actually exhausted their state remedies.³ Since the City Court of Buffalo decided the issues before us adversely to Sero and Varner and the Erie County Court and the Court of Appeals denied them leave to appeal, "it would be a futility" (336 F. Supp. at 367) to require the other named plaintiffs to perform the empty formality of applying to the state courts for relief which they know will be refused them. United States ex rel. Hughes v. McMann, 405 F.2d 773, 775-776 (2d Cir. 1968).

Moreover, Gesicki shows that defendants' contentions that a suit such as this is not a proper class action and cannot be decided by a three-judge court are without merit. Gesicki clearly indicates that a habeas corpus action can be brought as a class action (336 F.Supp. at 373) and decided by a three-judge court (336 F.Supp. at 374, n. 3), if the prerequisites of a class action are met and an injunction against the enforcement of a state statute is sought. Indeed, the court in Gesicki held that the action could have been brought under either the Civil Rights Act (28 U.S.C. § 1343) or the Habeas Corpus Act (28 U. S.C. § 2254). 336 F.Supp. at 374, n. 3. The Gesicki rule is applicable here, but in one material respect this case is even less clearly a habeas corpus action than Gesicki. In Gesicki, the statute under attack had been repealed prior to the commencement of the action, though it remained in effect as to persons previously sentenced under its provisions, including the plaintiffs. Accordingly, the effect of the statute, there, was limited to the expiration of the term of those already in custody, or on parole or probation pursuant to its provisions. Here, plaintiffs seek to enjoin the full prospective application of a statute which is currently in effect, not just for those in custody but for those who might be affected by its provisions hereafter. Thus, this suit is even more clearly a suit properly brought under § 1983 than was Gesicki.

We come to the merits. To determine the propriety of convening a three-judge court we must decide whether the decisions of the Supreme Court and other courts which are as analogous as possible to the case at hand "foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938). Applying this test, it is clear that the issue of whether the provisions of the statute before us are unconstitutional on their face is foreclosed. A veritable plethora of cases from almost every circuit has upheld a similar provision under the federal Youth Corrections Act, which permits a judge to sentence a youthful offender to an indeterminate term with a possible maximum of six years with automatic conditional release after four years (18 U.S.C. §§ 5010(b), 5017(c)), even though adult offenders cannot be sentenced to as long a term. Challenges to this statute based on the due process clause of the Fifth Amendment and the cruel and unusual punishment clause of the Eighth Amendment by plaintiffs who would have received shorter sentences if sentenced as adults have consistently been rejected,⁴ and the statute has been upheld by the Court of Appeals for this circuit. United States v. Dancis, 406 F.2d 729 (2d Cir.), cert. denied, 394 U.S. 1019, 89 S.Ct. 1640, 23 L.Ed.2d 44 (1969).

The federal Youth Corrections Act is, of course, not open to challenge as a violation of the equal protection clause of the Fourteenth Amendment as are the New York Penal Law provisions. However, it would be anomalous to hold the states to a...