5-7-76 LFP/gg . ,.. MEMORANDUM TO FILE No. 74-1055 Stone v. Powell No. 74-1222 Wolff v. Rice We know, from the "clerk grapevine" that Justice Brennan plans to file an "explosive" dissent. We will probably have to make some response. Among other things, we might keep in mind the following: (i) somewhat greater emphasis that t here c omes a point when the cost to society of applying a prophylactic rule, that does not create a personal constitutional right, simply is too great. (ii) other civilized systems do not release guilty defendants merely because the constable blundered (iii) the view of the dissent (if it materializes in the form expected) is that the Court's decision in these cases represents a major regressive reversal of prior precedents. answer not 1 mentioned in my present draft opinion, is that until ~ One - only 14 years ago - the exclusionary rule was not applied to the states in Fourth Amendment cases, and not until the dictum in Kaufman did this r.ourt indicate that it applied 2• .&t.L: on collateral review of Fourth Amendment 1\ cases. Thus, for the first century and 3/4ths (175 years) of the life of our country, persons demonstrably guilty as charged were not "turned loose" on society merely because critical evidence had been seized unlawfully. (iv) We might add something along the lines of my Bustamonte opinion to the effect that habeas corpus, at least until Fay v. Noia, had been considered a remedy to afford relief against unjust incarceration. Normally this would not include defendants clearly guilty whose trials were flawed by a Fourth Amendment infringement. In this general connection, the following statement in Townsend v. Sain, 372 U.S. 293 at 312 may possibly be relevant: "State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against State action by the Federal Constitution." 3. ***** Mr. Justice Stewart thinks we should be prepared to make a strong response to Mr. Justice Brennan's full scale assault. ~P., Jr. LFP/gg 5-7-76 MEMORANDUM TO FILE No. 74-1055 Stone v. No. 74-1222 Wolff v. Rice We know, from the "clerk grap·e vine" that Justice Brennan plans to file an "explosive" dissent. We will probably have to make some response. Among other things, we might keep in mind the following: (i) somewhat greater emphasis that there comes a point when the cost to society of applying a prophylactic rule, that does not create a personal constitutional right, simply is too great. (ii) other civilized systems do not release guilty defendants merely because the constable blundered (iii) the view of the dissent (if it materializes in the form expected) is that the Court's decision in these cases represents a major regressive reversal of prior precedents. One ~ answer not mentioned in my present draft opinion, is that until Mapp - only 14 years ago - the exclusionary rule was not applied to the states in Fourth Amendment cases, and not until the dictum in Kaufman did this £ ourt indicate that it applied . !- -. 2. ~·· ~- >f, ..-: ,, 'l ·r'~ on collateral review of Fourth Amendment cases. Thus, for the first century and 3/4ths, (175 years) of the life of our country, persons demonstrably guilty as charged were not "turned loose" on society because critical evidence had been seized unlawfully. (iv) v •1 l We might add something along the lines of my Bustamante opinion to the effect that - habeas corpus, at least until Fay v. Noia, ·: "'. '., ..... had been considered a remedy to afford relief against unjust incarceration. ...... 1' ,, ~~· Normally this would not include defendants clearly guilty ·tlti ; whose trials were flawed by a Fourth Amendment In this general connection, the following statement in Townsend v. Sain, 293 B;t 312 may possibly be relevant: "State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention ' ' ··' violates the fundamental liberties of J!' ' the person, safegaarded against State ';· ·~ the Federal Constitution." , * Mr. Justice Stewart thinks we should be prepared ~," ~,,··~, to make a strong response to Mr. Justice Brennan's full I l ' · scale assault. : L.F.P., Jr. ' . lfp/ss f1/ll/76 Rider A, p 23 (Stone v. Powell) Add the following to note 30: We nevertheless afford broad habeas corpus relief, recognizing the need in a free society for an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty. ~. The Court in Fay v. described habeas corpus as a remedy for "what society deems to be intolerable restraints", and recognized that those to whom the writ should be granted "are persons whom society has grievously wronged". 441. 372 u.s., at 401, In the typical Fourth Amendment claim asserted on collateral attacK, however, a convicted defendant is usually asking society to redeterming an issue that has no bearing at all on the basic justice of his incarceration. 5/11/76 In sum, we conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, 35 a state prisoner may not be granted federal habeas corpus relief on the ground that such claim was erroneously rejected by the state courts. In this context 1 the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the recognized costs of application of the rule persist with special force. 36 lfp/ss 5/11/76 Rider A, p 21 (Stone v. Powell) The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims. f I I lfp/ss 5/ll/76 Rider A, p. 24 (Stone v. Powell) ...,..... But there is no reason to believe that the overall educative effect of reexamining state convictions on Fourth Amendment grounds would be significant. ) ,ju:pumt Q}cmt ltf t4t ~lt ,jhdtg 'llhtllftittghttt.lO. <!}. 21l.;t~~ CHAMBERS OF JUSTICE WM.J. BRENNAN , JR. May 15, 1976 RE: Nos. 74-1055 and 74-1222 Stone v. Powell & Wolff v. Rice Dear Lewis: In due course I shall circulate a dissent in the above. Sincerely, Mr. Justice Powell cc: The Conference j)nprtmt Qf4tttrt 4tf tfrt 'JI!ttittb j)tatts ~asfriughttt.!B. <!f. 2ll~'l-~ CHAMBERS OF JU ST ICE POTTER STEWA R T May 17, 1976 Re: Nos. 74-1055 and 74-1222, Stone v. Powell Dear Lewis, I am glad to join your opinion for the Court in this case. Sincerely yours, Mr. Justice Powell Copies to the Conference P. S. to Mr. Justice Powell only It is quite possible that I may have some further suggestions after we see the dissenting opinion. ju.vrtmt <!Jom:t .o-f t!rt ~tb ,jt~s jlras!rittghm. ~. <!J. 2llgt~~ CHAMBERS OF ..JUSTICE WILLIAM H . REHNQUIST ) May 17, 1976 Re: No. 74-1055, Stone v. Powell; No. 74-1222, Wolff v. Rice Dear Lewis, Please join me in your opinion for the Court. Sincerely~ Mr. Justice Powell cc: The Conference ~U}tfttttt <!f01tri qf tlrt ~tb ,j~ztt.tg -ufring~ ~.<!f. 2U&i~$ CHAMBERS OF JUSTICE WILLIAM H . REHNQUIST May 17, 1976 Re: Nos. 74-1055 and 74-1222 - Stone v. Powell, et al. Dear Lewis: I think that I have some language which will satisfy you and me, though it might not satisfy Potter, on page 24 in your opinion in this case. The last two lines of text on that page presently read: "We adhere to the view that these considerations support the implementation of the exclusionary rule at trial • • • " I think the desired neutrality would be fully achieved if something like this could be substituted for those two lines: "We adhere to the view that these considerations support the implementation of the rule under which illegally seized evidence may be excluded at trial • • • " If the language appeals to you, use it as you will. If it doesn't, forget it. Sincerely, ~ Mr. Justice Powell ~tutt <Q:ltltrl llf tltt )lnitth ~httt­ Jl'ulti:ttgbm. ~. <Q:. 2llbi~~ ' CHAMBERS OF JUSTICE HARRY A . BLACKMUN May 24, 1976 Re: No. 74-1055 No. 74-1222 - Stone v. Powell Wolff v. Rice Dear Lewis: Please join me. Sincerely, Mr. Justice Powell cc: The Conference .Supr~mt <lJ:!lUrlllf tlr~~ttb' .sw~1Ja,g.lfittghnt. ~. a):. 2lJ.gi'l' CHAMBERS OF" .JUSTICE .JOHN PAUL STEVENS May 27, 1976 Re: 74-1055 - Stone v. Powell 74-1222 - Wolff v. Rice Dear Lewis: Confirming my oral statement to you, I do intend to join your opinion for the Court but am considering writing a short additional concurring opinion because of the exceptional importance of the case. Sinc~rely, JL Mr. Justice Powell Copies to the Conference -t..,......... o. . d"; •c-.'1~ A'a • .. t 4&4 sj~ ~~4.'' ~ ?<,. S. ~C~ . ' c~ u... 5 "f r~~- .f, ,I 5 ilt ~ .... .. ~- ,' 't.• !1.~ 4-/c l 1-"t t t'" 2 ' ~I ~ n · z z. ~ f ~ :4-:;._,:l • ~ ·~~- ~~ <I ~~, I ~,..c..L.£1 -3--- I""Jo"o""--&.IA../1 , .... -'2- ' ~. - -~ : - ~ I I \ ' ....... -II j~ . +-~~5~'-~ 2 ~ ·~ ~1ffi, ,~ '• ,, ~ '" ~..· ~~· ~ { IJ~':v') '~~·'"· ~· *"_..1~ ~· tf,:~i ... II ... 1t#!f