OPINION AND AMENDED SENTENCE
CANCIO, Chief Judge.
The fulfillment of my desire to reduce the sentence in this case under Rule 35 of the Federal Rules of Criminal Procedure has been delayed because, upon knowing that I had asked the Court of Appeals to return the case to us for this limited purpose, the United States Attorney moved the Court for permission to be heard orally, and even though I denied his request, I gave both parties the opportunity to file a memorandum. The U. S. Attorney has filed his memorandum. The defendant chose not to. The main point raised in the memorandum of the Government is that this Court lacks jurisdiction because the case is already on appeal. I do not agree. That would have been the law had the Court of Appeals not returned the case to me for reduction of sentence. But, in so doing, the higher court is re-granting this Court the jurisdiction to proceed as planned.
In each and every case cited by the United States Attorney in support of his contention, the sentence is on appeal but the case has not been returned to the lower court. That is not the situation in our case. As a matter of fact, I think that if I were to refuse to act now for fear of lack of jurisdiction to reduce the sentence, I would appear as pretending to reverse the Court of Appeals, which returned the case to this court precisely so that I may act in the manner announced in my request. That I cannot do.
The remaining arguments on other points raised by the United States Attorney are not convincing and will not be discussed here.
According to the law, a reduction of sentence may be made even in the absence of the defendant.
This is what I would have told the defendant had he been before me:
Mr. Feliciano Grafals, I have called you for further proceedings in your case. Before I explain to you the exact purpose of your having been called to appear before me today, a summary of the prior proceedings had in your case becomes necessary.
After having been indicted by a grand jury for three alleged violations of sections 454 and 462 of the Universal Military Training and Service Act (now Military Selective Service Act), and after several pre-trial motions were disposed of by the Court, you were finally brought before a petit jury to be tried. Some evidence having been presented, partly in the presence of the jury and partly before the judge alone, your attorneys made motions for the dismissal of all three counts. I held in your favor as to two of the three motions, with the result that two counts were dismissed,
As usual, I asked the United States Probation Officer for a presentence report. You remained at liberty pending sentence. The report revealed, among other details, that you considered yourself innocent of the crime of which you had been found guilty and that, therefore you rejected completely the idea that the Court should even consider the possibility of imposing a sentence on probation. I, the judge, had no alternative but to sentence you to imprisonment, payment of a fine, or both. You made that choice for me.
On September 26, 1969, after I went through the formalities which precede every sentencing, in response to my questioning you affirmed your stand that you would not accept probation. I then did the only thing I could, and was as lenient as I thought at the time that I could be. Because I considered, and still consider you, not a criminal, but an honest citizen who technically has violated a penal law, I sentenced you to the least number of years possible — one.
You, then, through your attorneys, filed a notice of appeal. You moved that you be allowed to remain at liberty while your case was on appeal, on the same bail you had originally given. I granted the motion, and went somewhat further. Because I was convinced that in your case there was no danger of your fleeing the jurisdiction of the court or otherwise becoming unavailable when the court needed you, I left you free on your own recognizance, that is, without your even having to post any bond at all. You have remained this way since then and this is your condition at present.
The hearing for which you have been summoned is pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
As noted before, from September 26, 1969 to today, January 23, 1970, only 119 days have gone by. Therefore, the Court is still in the position of being able to change your original sentence; it has jurisdiction to do so. By way of parenthesis, I will add that this Court was without jurisdiction to act under Rule 35 because of your filing your notice of appeal. The Court of Appeals, though, at the request of this Court, has returned the case to us to proceed under Rule 35.
The circumstances prevailing when I sentenced you, as far as I know, have not changed in so far as to affect the length of the sentence imposed on you. Nor has the statute been amended. Similarly, my attitude towards you today is the same it was then. Nevertheless, a few days ago, while I was meditating on the substantial justice of your case, which I have not ceased to do from many days before I sentenced you, I thought of and rediscovered certain powers given to me by the law, which I can exercise on your behalf and on behalf of the justice of the case.
Upon sentencing a defendant and when reconsidering a prior sentence to vary its terms, the court owes no one any explanations. Nevertheless, in some cases in order to achieve a better administration of justice in the future and in order not to induce part of the public to error, it becomes convenient to explain the wherefores of a sentence. I think that this is necessary today. I also think that it is necessary to explain, not only for your own benefit but for the benefit of other citizens, your motives, as I see them, in acting contrary to the clear language of the law. For this, one must of necessity refer to the problem of the political status of Puerto Rico, a problem which worries you — as well as me and so many other Puerto Ricans — so profoundly and sincerely. For a better understanding of the situation, it is necessary to make a brief — perhaps too brief — statement of the pertinent historical facts.
From its discovery and up to at least 1897, Puerto Rico was a colony of Spain, despite the various ups and downs which occurred regarding its greater or lesser degree of self-government at different times.
It was a similar historical reality which, shortly before 1950, motivated a group of American citizens from Puerto Rico and a group of members of the Congress of the United States to try to find an adequate solution to the political status of Puerto Rico. The politico-constitutional development process which took place between 1950 and 1952, and which resulted in the creation of the Commonwealth of Puerto Rico and the approval by the Puerto Ricans of their own Constitution, seemed and still seems to many the answer to the political problem of the island, although they were conscious that the Commonwealth could and should be improved; should "culminate," to employ the term used later by a particular political party to refer to the goal of the growth of the Commonwealth. But what seemed and still seems to many an agreement between two peoples, binding on both and "in the nature of a compact" —
Regardless of who is right, there is today a respectable number of respectable people, some of them to be found even among the defenders of the Commonwealth status, who honestly believe that the United States governs in Puerto Rico in the limited form allowed it by the Puerto Rican Federal Relations Act, without there having really been consent of the people of Puerto Rico. These people believe in all good faith that the generic consent given in the consultations via referenda made of the people at the ballot boxes between 1950 and 1952 were not a consent sufficient to permit the federal Congress to legislate for Puerto Rico in matters so vital to its life as a people, only one of which we need mention here, compulsory military service.
It is elementary that courts can not declare statutes null or unconstitutional because they seem to the court unjust or undemocratic. To pass or not to pass just and democratic laws is the prerogative of the legislator. Courts rule only on their constitutionality. Having found the law to be constitutional, and you having been found guilty by the jury of its violation, the only thing left in our realm is the sentence.
I have made this introduction, which perhaps may seem unnecessary, in order to put you, the defendant in this case, in the correct perspective within the framework you found before you when you were required by law to enter the Armed Forces of the United States, as well as your motives for refusing to do so. According to the evidence believed by this judge — and perhaps by the jury — you believe, without there being any doubt as to your good faith, sincerity and honesty, that the tenure of the United States in Puerto Rico has no reason for being and is not justified; that it is without the consent of the people of Puerto Rico and against its will. The overwhelming majority of the people of Puerto Rico may believe you completely wrong, but that is your truth, the truth in which you honestly believe. And you believe in that, your truth, as honestly and in good faith as so many other Puerto Ricans believe in their own truth, which is diametrically opposed to yours. You believe, for the same reasons, with the same conviction and just as honestly, that the Military Selective Service Act is not constitutional nor valid, insofar as it applies to Puerto Ricans, who were not represented with a voice and vote in the legislative body which approved it. Your conscience does not permit you to serve compulsorily in the United States Armed Forces, regardless of how justified or unjustified are the wars this nation is engaged in. This, according to this Court which does not share your views,
During the days which preceded your sentencing, for the reasons here set out, and because, as I said a moment ago, I considered that I had before me not a criminal but a man who, only technically, was a violator of the law, I studied every possibility of avoiding your imprisonment. Nor did a fine turn out to be the answer to my worries, as you, who were litigating in forma pauperis, could not afford to pay it. I exhausted every imaginable legal resource, and yet I could not find a way to avoid that sentence I had to pronounce. Your opposition to the Viet Nam war, although sincere and perhaps justified, was not, I believed then and I believe today, a valid excuse for not complying with the law. As to this, your remedy as an American citizen is to permit yourself to be drafted, possibly to fight other just wars or not to fight any war at all, and claim your right not to fight in the Viet Nam war if and when you are required to do so, using the legal resources at your reach, both administrative and judicial. On the other hand, because you were not opposed to violence, to war in any form, you were not a conscientious objector under the law. When asked, you frankly admitted that you would consider fighting certain types of wars, and gave as example precisely a war for the independence of Puerto Rico. Because you were not opposed to war as such, to all wars, you could not be a "conscientious objector" under the law. And you could not be so, even though this Court has held from the bench that reasons of a religious nature are not needed to be considered a conscientious objector under the law, and that inasmuch as the Military Selective Service Act limits this right to the religious, it is unconstitutional and void.
Neither the jurisprudence I read and reread, nor the long hours I spent in meditation, helped me avoid sentencing you. I had to be content with the most lenient sentence I thought I could impose.
Every solution which had occurred to me up to a few days ago had to be rejected because it was repugnant to the law or needed your consent, as the defendant in this case.
We have thoroughly searched through the legislative record of the penalty provisions of this statute for a reference to what we consider the special case of Puerto Rico. We have been unable to find anything in this respect. We are most sure that, consistent with the democratic tradition of the people of the United States and with its profound American sense of fair play and justice, had its representative, the Congress, had in mind the case of a Puerto Rican "independentista," honestly and deeply convinced that he is not constitutionally nor legally bound by the law which you have violated, Congress would have expressly made the necessary adjustments to insure that justice would be done. Congress did not have that case in mind and, consequently, did not make the necessary adjustments to insure that justice be done. Thus, it is up to the Court to use its constitutional and legal powers in such a way as to lessen to the
One last word that I hope will be a contribution to a better solution to the problem we face here and to problems similar to it. As long as Puerto Rico does not become a state of the Union by the very will of the people of Puerto Rico, expressed by whatever majority may seem necessary, in the exercise of their self-determination, or as long as Puerto Rico does not become an independent nation, also in the exercise of her self-determination by the will of the majority of the people of Puerto Rico, or as long as the present status of Commonwealth which we have sustained and reaffirm today is a status of dignity equal to the other two and permanent in nature, is not definitely clarified by the Congress of the United States and the people of Puerto Rico in a compact or any other document in which are expressly and unmistakenly recognized the capacity and the juridical personality of the people of Puerto Rico to enter into a contract with the Congress, binding on both parties, utilizing to describe such capacity or personality the word "sovereignty" or not, or, at least, as long as a practical solution is not adopted by the Congress, such as determining by federal law that the effect of the penal provisions of the Military Selective Service Act and similar laws shall not apply to Puerto Rico except if expressly approved by its Legislative Assembly and by its Governor, there will be cases like this one.
Note that I am not saying, nor even suggesting, that the Compact is non-existing or that it is not binding on the parties nor that Puerto Rico is a colony of the United States. On the contrary, the Compact does exist. It is binding on both parties.
Extending the Selective Service and similar acts to Puerto Rico only through the specific consent of the people of Puerto Rico would not be a bad idea. Nor would declaring an amnesty for those who have violated the present law in good faith.
I do not want to induce anyone into error by today's sentence. Let not the public become confused and believe that this decision will open the doors to anyone who alleges to be in similar circumstances as Edwin Feliciano Grafals, to receive a sentence like his. What I am doing today I might possibly do again in the future, but it will necessarily have to be in a very small number of cases of Puerto Ricans who believe in the same principles as this defendant, and with the same sincerity and firmness
In view of the thoughts heretofore expressed, this Court hereby reduces the sentence it imposed on September 26, 1969 on Edwin Feliciano Grafals, the defendant herein, from one year of imprisonment to one hour of imprisonment, to be served, according to law, in the place to be designated by the Attorney General or his authorized representative. Due to the shortness of this sentence, it is strongly suggested that it be served at the Marshal's office in the place where he keeps other defendants waiting for court action.
Sentence shall be entered accordingly.
The record of this case shall be returned to the Court of Appeals for the First Circuit.
It is so ordered.
"Judges often suffer when sentencing human beings, even though those human beings happen to be hardened criminals. In your case, my suffering has been the greatest of all in the cases before me. It has been the greatest because I do not believe you are a criminal but a person who for ideas and ideals in which he firmly believes, has chosen to violate a law which he believes unjust, invalid and unconstitutional. I know that you love Puerto Rico. I love Puerto Rico as much as you do. The only difference is that we disagree as to what is best for our country. I wish you would have given me the opportunity to avoid this sentence by having accepted probation. I think I understand why you would not voluntarily accept any conditions, but I am very sorry not to have been able to avoid sentencing you as I did. Good luck."