PRETTYMAN, Circuit Judge.
Appellant is a fugitive from justice in the State of Georgia. He was found in the District of Columbia. The executive authority of Georgia, producing a copy of an indictment charging him with a crime there, and identifying him as the person indicted, demanded his return. He was arrested and, after a hearing, his delivery to an agent of the State of Georgia was ordered. Thereupon he presented to the United States District Court for the District of Columbia a petition for a writ of habeas corpus. In the petition he alleged that he had been arrested and jailed in Georgia for robbery; that for ten months he was given no preliminary hearing, indictment
Article IV, Section 2, clause 2, of the Constitution provides: "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
The Constitution had hardly been adopted when dispute arose over the requirements of that provision. Pennsylvania was the demanding state and Virginia the state of asylum in a controversy which went to President Washington, from him to Attorney General Edmond Randolph, and from him to the Congress.
In extradition matters in this jurisdiction, the Chief Judge of the United States District Court for the District of Columbia exercises the functions exercised by the executive authority of a state.
Habeas corpus is the proper process for testing the validity of the arrest and detention by the authorities of the asylum state for extradition purposes. But a petition for a writ for that purpose tests only that detention; it does not test the validity of the original or the contemplated incarceration in the demanding state. The Supreme Court has established the scope of the extradition inquiry and the issues which are presented by it.
The question before us is whether a court (either state or federal) in the asylum state can hear and determine the constitutional validity of phases of the penal action by the demanding state in respect to the fugitive or his offense. We think that it cannot do so. Authorities, sound theory of government, and the practical aspects of the problem all require that conclusion.
The problem is not merely one of forum non conveniens. It involves the interrelationship of governments, both among the states and between the states and the Federal Government. The quoted provision of the Constitution is in the nature of a treaty stipulation between the states, and compliance is a matter of agreed executive comity. In Appleyard v. Massachusetts
While the provision of the Constitution, being specific in its reference to "State", may not apply to the District of Columbia, the same basic theory underlies the federal statute which clearly does apply. Both Constitution and statute are explicit and mandatory. They require — not merely suggest — that the fugitive, having been secured, be delivered to the demanding state.
The law of nations, absent treaties, contemplates that every nation control the entrance vel non of persons into its borders; those whom it wishes to stay, stay.
The Federal Government has no function in this interstate arrangement, except that its courts may see, upon petition for habeas corpus, that the states abide the compact; and, of course, its territories must obey the statute. To say that the federal courts may interpose in this process their judgment of the internal processes of the states and the fidelity of their officials to their duties, is to nullify the agreement embedded in the Constitution and to reestablish the rule of the law of nations which it was intended to disestablish. The federal courts have no power to nullify a provision in the Constitution.
Of course, appellant has a right to test in a federal court the constitutional validity of his treatment by Georgia authorities. But that test cannot come as a part of the constitutional process of returning a fugitive to the state where he is charged. If this fugitive's constitutional rights are being violated in Georgia, he can and should protect them in Georgia. Not only state courts but a complete system of federal courts are there.
The basic premise of appellant's position is that he could not get fair treatment in the courts of Georgia, either state or federal. Every argument in support of power in the District of Columbia court to consider and determine whether appellant should be released because of anticipated ill-treatment by executive officers of Georgia comes in the final analysis to the essential proposition that appellant's rights would not be protected by the courts of Georgia. Those courts are there. They are charged with the duty of protecting this prisoner and any other in custody in that state. If they perform that duty, appellant would be as adequately
We are asked to assume that appellant would not be protected by the courts in Georgia. We not only decline to make the assumption but we repudiate the suggestion that we make it. We will not impugn either the capacity or the integrity of the state courts of Georgia or of any other state. And even if we were to assume, upon the basis of this fugitive's allegations, that the state courts are impervious to his assertions, we would make no such assumption concerning the federal courts having jurisdiction in that state. Those courts of the United States are as capable and faithful as are the courts of this or any other jurisdiction. If that Court of Appeals errs, certiorari to the Supreme Court will lie.
If we will not assume the non-availability of courts in Georgia, we are asked to permit petitioner to present evidence upon that non-availability and then to determine the question. There is an established procedure for the correction of error or dereliction on the part of every court in the country, and where constitutional rights are involved the Supreme Court of the United States stands watchman over every court, state or federal. It would be an act of unwarranted arrogance for us to ascribe to ourselves virtue superior to that of other courts and so to assert power to hear and determine the faithfulness to duty of a sister court occupying a place like ours in the federal system. We have not the slightest semblance of authority over such courts. We might differ with them in opinion, but to us the availability of the Georgia federal courts to protect appellant is not "merely a presumption".
Since we have no power to make a presumption or a finding one way or the other upon the virtues or the vices of other Courts of Appeals and since we will not usurp that power, it is of no moment that we should remark upon the subject. But it seems not inappropriate for us to comment that reported cases show the United States Court of Appeals for the Fifth Circuit to be as zealous in protection of the constitutional rights of persons within its borders as is any other Court of Appeals. It was the United States District Court for the Middle District of Georgia which convicted and sentenced to the penitentiary one Screws, a sheriff, for beating a prisoner. The Fifth Circuit affirmed that conviction
Appellant cites the authorities which hold that if the facts alleged in a petition for habeas corpus are such that, if established, they would require issuance of the writ, he must be afforded opportunity
It is said that this case presents a conflict between provisions of the Constitution. It presents no such conflict. The extradition clause is a procedural provision. It does not impinge upon any substantive right of any individual and does not affect any provision of the Constitution or its Amendments protecting such rights. The provision of the Constitution
The argument pressed upon us on behalf of appellant is susceptible of reductio ad absurdum. A fugitive has neither more nor less constitutional rights than has an incarcerated prisoner. If the Georgia courts, state and federal, will not enforce the Constitution as to returned fugitives, they will not do so as to prisoners already in the State. But the rule is settled that habeas corpus on behalf of an incarcerated prisoner lies only in the district of his incarceration.
It is said that under the doctrine urged upon us in behalf of appellant the fugitive would have to establish by adequate evidence that if returned to the demanding state he would be reasonably likely to undergo cruel and unusual punishment or be deprived of some constitutional right. We are asked to follow the lead of the Third Circuit in Johnson v. Dye.
That prisoners and fugitives from justice frequently allege beatings and starvation by police or prison officers is demonstrated by reference to almost innumerable cases. Pennsylvania, in the Third Circuit, does not appear to have been immune from these allegations. In Commonwealth v. Brown,
The State of Georgia failed to appear in Johnson v. Dye, and the same situation might reasonably occur in any similar case. In the first place, the Governor of a demanding state may well believe that a United States District Court in some distant district has no jurisdiction to consider and determine the constitutionality of the penal practices of his state. He might decline to concede the contrary or even to appear to do so.
In the next place, the budgets of the states probably do not include funds for the transportation and compensation of lawyers and parties of executive officials to various distant points to combat the testimony of fugitives as to probable penal treatment of returned prisoners. The interests of the citizens may not, in the opinion of the Governor and the Legislature, justify expenditures in large amounts for such purposes, if the asylum state wants to retain the fugitives. The presence of these persons in their state may not be worth any considerable sum of money to them. Having performed their duty under the Constitution by requesting extradition, with a disclosure of the facts concerning the fugitive, they might be content to let the matter rest there, if the asylum state wishes to grant refuge.
It is conceivable that executive authorities in some states might welcome the establishment of areas of refuge distant from their own responsibility to which undesirables might flee and leave no burden of duty upon their home officials. This possibility is suggested in the concurring opinion in Johnson v. Dye. It is there stated that 175 other prisoners escaped at the same time as did Johnson, that one of the other
The chaos into which the enforcement of criminal law would be plunged by the doctrine urged upon us by appellant is as readily discernible now as it was when the Colonies first made what is now the existing agreement. The case before us concerns Georgia. The next might concern Alabama. The question there might be whether casually attended, ununiformed laborers with chains attached to their legs, at work in the open air on country roads, are undergoing cruel and unusual punishment. The next case might concern New York or Illinois, and the question might be whether serried, shaved and numbered robots in the monotony of gray walls, or in occasional solitary confinement in darkened cells on bread and water, are suffering cruel and unusual punishment. And so a pattern of opinion in this jurisdiction concerning the penal practices of all the forty eight states would in time necessarily develop. The authors of the succinct note on "The Third Degree" in the Harvard Law Review
The resultant confusion is apparent, and the resultant animosities among states and between the states and the Federal Government are as readily discernible. In the case urged upon us as authority, the Governor and the state courts of the asylum state (the trial court and the court of intermediate appeal, where the case ended) refused to free the fugitive. When application for a writ was made to the federal court, they opposed the petition. The federal appellate court, Judge O'Connell commented, "turn[ed] loose a convicted murderer among the law-abiding citizens of Pennsylvania, a state which ha[d] expressly refused to harbor him." The confusion and the animosity which would result from the course urged upon us are compelling reasons why we should not adopt it, just as they were compelling reasons for the provision in the Constitution in the first place.
We find ourselves in disagreement with the United States Court of Appeals for the Third Circuit in its opinion in Johnson v. Dye.
The judgment of the District Court is
BAZELON, Circuit Judge (dissenting).
Just as certain rights — those of freedom of speech, press, assembly, religion, etc. — have been said to stand in a "preferred position" under our Constitution, so also would I include within that group the right of the individual to be free from cruel and unusual punishment and to be tried for a crime of which he is accused. The latter is to the individual what the former is to the body politic and both must be the object of zealous concern if our concept of liberty is to be preserved. Accordingly, I am unable to agree that this court is barred from inquiring into charges as grave as those made by petitioner here. In expressing this dissent, I am well aware of the factors of history, policy and precedent underlying the position of the majority. But I have been cited to no controlling authority in which this particular question — viz., the availability of extradiction where there has been cruel and unusual punishment or the denial of a right to trial — has been decided.
Petitioner's allegations below are that he has been subjected to cruel and unusual punishment and that he has been imprisoned for ten months without being brought to trial. For the purpose of this appeal, we are bound to accept these grave allegations as true. Yet, under the majority view, they may not be considered, regardless of the content petitioner may be able to give to them. Even if petitioner can prove, in a hearing on the merits under these allegations, that he will never get to trial in Georgia, or that he will not get access to any court in that state because of the cruel and unusual punishment which may cause his death before that time, his release could not be secured on habeas corpus.
This court rests its conclusion in large part on the availability of the Georgia state courts and of the Georgia federal courts to protect petitioner. It thus raises what is merely a presumption — that the law will follow its ordinary course and that officials will act properly — to the level of a conclusive rule of law. It should be clearly understood that I make no assumption that state or federal courts in Georgia will be unavailable. It is the majority which makes their availability an absolute and bars any attempt on the part of petitioner to show the extent of their unavailability. I would treat the regularity of official action as a rebuttable presumption to be tested in the light of facts, rather than by speculation within the bare frame of pleadings. This view does not entail disrespect for the Georgia state or federal courts, nor any doubt as to their capability, integrity or faithfulness to the Constitution and its Bill of Rights. In fact, it makes the majority's reference to such considerations completely irrelevant. It does, however, take account of the notorious facts concerning recurrent penal practices in many of our states, not alone Georgia. It considers the very real possibility that those courts may never have the opportunity to safeguard rights such as those involved here, that the harm may be done before the judicial process can even be brought into play.
I think we should follow the lead of the Third Circuit in Johnson v. Dye, 3 Cir., 1949, 175 F.2d 250,
I would remand the case to the District Court for a hearing on the merits, the objective being to ascertain whether Johnson has suffered the alleged infringements and "would be reasonably likely to undergo similar abuse if he were returned to Georgia" [Id. 175 F.2d at page 259]. It may well be that petitioner will be unable to prove his allegations or to show such facts as would result in his securing relief. His burden of proof would undoubtedly be great. We might be unwilling to accept the sort of proof relied upon by the Third Circuit and referred to by the majority here. But I cannot bring myself to concur in a view which forecloses all opportunity of showing the extent to which basic rights have been infringed. Unless such an opportunity is afforded petitioner, there can be no accurate assessment of competing constitutional considerations.
It is regrettably true that my view, as the majority quotes from Judge O'Connell's opinion in the Dye case, "[might] turn
The doctrine of exhaustion of state remedies in habeas corpus, designed to prevent premature abandonment of state remedies in search of federal relief, is of course inapplicable here in the District of Columbia.