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.
)
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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
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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.
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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
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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
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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
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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
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