Stewart v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: JOHNSEN, , and MATTHES and RIDGE, Circuit
• Citation: Stewart v. United States, 325 F.2d 745 (8th Cir. 1964)
• Decision Date: 02 January 1964
• Docket Number: No. 17034.,17034.
• Parties: Perrin STEWART, Appellant, v. UNITED STATES of America, Appellee.

325 F.2d 745 (1964)

Perrin STEWART, Appellant, v. UNITED STATES of America, Appellee.

No. 17034.

United States Court of Appeals Eighth Circuit.

January 2, 1964.

Perrin Stewart, pro se.

D. Jeff Lance, U. S. Atty., and William C. Martin, Asst. U. S. Atty., for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

JOHNSEN, Chief Judge.

Appellant was given a 10-year sentence for narcotic conspiracy under 21 U.S.C. § 174. He sought by collateral attack to have the sentence vacated for alleged unconstitutionality. The District Court denied the application on its face, and he has appealed.

His claim was that the sentence constituted cruel and unusual punishment, in violation of the Eighth Amendment, in that 26 U.S.C. § 7237(d) removed it, as one for a narcotic offense, from the operation of the administrative parole statute, 18 U.S.C.A. § 4202, while leaving the privilege of seeking parole in effect as to other sentenced offenders.

This contention has previously been before us in Vera v. United States, 8 Cir., 288 F.2d 25, 26, and was held to be without merit, in an opinion by Judge Woodrough, which said: "Appellant's contention that deprivation of the parole accorded under 18 U.S.C. § 4202 and continued confinement under his sentence constitutes cruel and unusual punishment is without merit. Such confinement is usual punishment. The discretionary granting of parole is a matter of legislative grace. The denial of it to certain offenders is within legislative discretion".

Congress as much has power to vary provisions for administrative alleviating of sentences as to vary provisions for judicial imposing of sentences, between classes of criminal offenses. Cruelty of punishment as related to sentences turns on what the sentence authorizes to be inflicted. What is reasonable punishment on this basis cannot, therefore, be contended to be cruel because it is without privilege of administrative alleviation, or because the privilege of seeking such alleviation is different than as to some other class of offense.

Other Circuits, where the constitutional contention has been presented, have similarly held that no question of cruel and unusual punishment is involved from the closing of a narcotic sentence to parole privilege. Gallego v. United States, 9 Cir., 276 F.2d 914; Lathem v. United States, 5 Cir., 259 F.2d 393. See also Oliver v. United States, 8 Cir., 290 F.2d 255; Halprin v. United States, 9 Cir., 295 F.2d 458; Witt v. United States, 9 Cir., 287 F.2d 389. As the Ninth Circuit summarized it in Gallego, supra, § 7237(d) "merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place". 276 F.2d at 918.

While Congress was free to refuse to accord the privilege of parole or to permit any other alleviation, either judicial or administrative, as to narcotic sentences, without indication of its reason for doing so, the legislative history involved makes clear that it regarded an urgent reason as existing for the...