author: Per Curiam.

text:
    UNITED STATES v. FIRST NATIONAL BANCORPORATION, INC., et al.
    No. 71-703.
    Argued October 16-17, 1972
    Decided February 28, 1973

      Deputy Solicitor General Friedman argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kauper, Acting Assistant Attorney General Comegys, Donald I. Baker, Howard E. Shapiro, William Bradford Reynolds, and Lee A. Rau.

      Eugene J. Metzger argued the cause for appellees. With him on the briefs were Edward B. Close, Jr., Carl W. Schwarz, and Mark W. Haase.

      Briefs of amici curiae were filed by Robert Bloom, C. Westbrook Murphy, and Charles H. McEnerney, Jr., for the Comptroller of the Currency; by William E. Murane and J. William Via, Jr., for the Federal Deposit Insurance Corporation; by Andrew P. Miller, Attorney General, and Henry M. Massie, Jr., Assistant Attorney General, for the Commonwealth of Virginia; and by Michael lovenko for the New York State Banking Department.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Powell took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Brennan, Mr. Justice Douglas,

license: Public Domain

text:
    HURTADO et al. v. UNITED STATES
    No. 71-6742.
    Argued January 17, 1973
    Decided March 5, 1973
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, BlackmuN, Powell, and RehN-quist, JJ., joined. BrennaN, J., filed an opinion concurring in part and dissenting in part, post, p. 591. Douglas, J., filed a dissenting opinion, post, p. 600.

      Albert Armendariz, Sr., argued the cause and filed a brief for petitioners.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, Harry R. Sachse, and Jerome M. Feit.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioners, citizens of Mexico, entered the United States illegally. To assure their presence as material witnesses at the federal criminal trials of those accused of illegally bringing them into this country, they were required to post bond pursuant to former Rule 46 (b) of the Federal Rules of Criminal Procedure. Unable to make bail, they were incarcerated.

The petitioners instituted the present class action in the United States District Court for the Western District of Texas on behalf of themselves and others similarly incarcerated as material witnesses. Their complaint alleged that they, and the other members of their class, had been paid only $1 for every day of their confinement; that the statute providing the compensation to be paid witnesses requires payment of a total of $21 per day to material witnesses in custody; and that, alternatively, if the statute be construed to require payment of only $1 per day to detained witnesses, it violates the Fifth Amendment guarantees of just compensation and due process. They did not attack the validity or length of their incarceration as such, but sought monetary damages under the Tucker Act, 28 U. S. C. § 1346 (a)(2), for the lost compensation claimed, and equivalent declaratory and injunctive relief.

The statute in question, 28 U. S. C. § 1821, provides that a “witness attending in any court of the United States . . . shall receive $20 for each day’s attendance and for the time necessarily occupied in going to and returning from the same A separate paragraph of the statute entitles “a witness . . . detained in prison for want of security for his appearance, ... in addition to his subsistence, to a compensation of $1 per day.”

The petitioners’ complaint was grounded upon the theory that they were “attending in . . . court” throughout the period of their incarceration, since they were prevented from engaging in their normal occupations in order to be ready to testify. They argued that the $20 fee is compensation for the inconvenience and private loss suffered when a witness comes to testify, and that all of these burdens are borne by the incarcerated witness throughout his confinement. Urging that the compensation provisions should be applied as broadly as the problem they were designed to ameliorate, the petitioners argued that they were entitled to the $20 compensation for every day of confinement, in addition to the $1 a day that they viewed as a token payment for small necessities while in jail.

While they pressed this broad definition of “attendance,” the petitioners also pointed to a narrower and more acute problem in administering the statute. Their amended complaint alleged that nonincarcerated witnesses are paid $20 for each day after they have been summoned to testify — even for those days they are not needed in court and simply wait in the relative comfort of their hotel rooms to be called. By contrast, witnesses in jail are paid only $1 a day when they are waiting to testify — even when the trial for which they have been detained is in progress. In short, the amended complaint alleged that the Government has construed the statute to mean that incarcerated witnesses must be physically present in the courtroom before they are eligible for the $20 daily compensation, but that nonincarcerated witnesses need not be similarly present to receive that amount.

In its answer, the Government conceded that each witness detained in custody is paid only $1 for every day of incarceration, and that the witness fee of $20 is paid only when such- a witness is actually in attendance in court. The Government defended this practice as required by the literal words of the statute, and argued that the statute, as so construed, is constitutional.

In an unreported order, the District Court granted the Government's motion for summary judgment, and the Court of Appeals for the Fifth Circuit affirmed. 452 F. 2d 951. The Court of Appeals concluded that the $20 witness fee is properly payable only to those witnesses who are “in attendance” or traveling to and from court, and not to those who are incarcerated to assure their attendance. So interpreted, the court upheld the statute as constitutional. We granted certiorari, 409 U. S. 841, to consider a question of seeming importance in the administration of justice in the federal courts.

I

Both the petitioners and the Government adhere to their own quite contrary interpretations of § 1821 — the petitioners maintaining that they are entitled to a $20 witness fee for every day of incarceration and the Government seeking to limit such payment to those days on which a detained witness is physically “in attendance” in court. We find both interpretations of the statute incorrect — the petitioners’ too expansive, the Government’s too restricted.

The statute provides to a “witness attending in any court of the United States” $20 “for each day's attendance.” This perforce means that a witness can be eligible for the $20 fee only when two requirements are satisfied — when there is a court in session that he is to attend, and when he is in necessary attendance on that court.

The petitioners’ interpretation of “attendance” as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time, there is literally no court in session in which he could conceivably be considered to be in attendance. Over a century and a half ago Attorney General William Wirt rejected a similar construction of an almost identically worded law. He found that the then-current statute, which provided compensation to a witness “for each day he shall attend in court,” could not be construed to provide payment to incarcerated witnesses for every day of their detention:

“There is no court, except it be a court in session. There are judges; but they do not constitute a court, except when they assemble to administer the law. ... Now I cannot conceive with what propriety a witness can be said to be attending in court when there is no court, and will be no court for several months.
“To consider a witness who has been committed to jail becausfe he cannot give security to attend a future court, to be actually attending the court from the time of his commitment, and this for five months before there is any court in existence, would seem to me to be rather a forced and unnatural construction.” 1 Op, Atty. Gen. 424, 427.

The Government, on the other hand, would place a restrictive gloss on the statute’s requirement of necessary attendance; it maintains that the $20 compensation need be paid only for the days a witness is in actual physical attendance in court, and it concludes that a witness confined during the trial need only be paid for those days on which he is actually brought into the courtroom. But § 1821 does not speak in terms of “physical” or “actual” attendance, and we decline to engraft such a restriction upon the statute. Rather, the statute reaches those witnesses who have been summoned and are in necessary attendance on the court, in readiness to testify. There is nothing magic about the four walls of a courtroom. Once a witness has been summoned to testify, whether he waits in a witness room, a prosecutor’s office, a hotel room, or the jail, he is still available to testify, and it is that availability that the statute compensates. Non-incarcerated witnesses are compensated under the statute for days on which they have made themselves available to testify but on which their physical presence in the courtroom is not required — for example, where the trial is adjourned or where their testimony is only needed on a later day. We cannot accept the anomalous conclusion that the same statutory language imposes a requirement of physical presence in the courtroom on witnesses who have been confined. Attorney General Wirt concluded that language similar to that at issue here, did not require any such physical presence:

“But it was by no means my intention to authorize the inference . . . that, in order to entitle a witness to his per diem allowance under the act of Congress, it was necessary that he should be every day corporeally present within the walls of the court-room, and that the court must be every day in actual session. Such a puerility never entered my mind. My opinion simply was, and is, that before compensation could begin to run, the court must have commenced its session; the session must be legally subsisting, and the witness attending on the court — not necessarily in the court-room, but within its power, whenever it may require his attendance. ... I consider a witness as attending on court to the purpose of earning his compensation, so long as he is in the power of the court whensoever it may become necessary to call for his evidence, although he may not have entered the court-room until such call shall have been made; and I consider the court in session from the moment of its commencement until its adjournment sine die, notwithstanding its intermediate adjournments de die in diem." 1 Op. Atty. Gen., at 426-427.

We conclude that a material witness who has been incarcerated is entitled to the $20 compensation for every day of confinement during the trial or other proceeding for which he has been detained. On each of those days, the two requirements of the statute are satisfied — there is a court in session and the witness is in necessary attendance. He is in the same position as a nonincar-cerated witness who is summoned to appear on the first day of trial, but on arrival is told by the prosecutor that he is to hold himself ready to testify on a later day in the trial. The Government pays such a witness for every day he is in attendance on the court, and the statute requires it to pay the same per diem compensation to the incarcerated witness. Because the Court of Appeals upheld a construction of the statute that would allow the $20 to be paid to incarcerated witnesses only for those days they actually appear in the courtroom, its judgment must be set aside.

II

The petitioners argue that if § 1821 provides incarcerated witnesses only a dollar day for the period before the trial begins, then the statute is unconstitutional. We cannot agree.

As noted at the outset, the petitioners do not attack the constitutionality of incarcerating material witnesses, or the length of such incarceration in any particular case. Rather, they say that when the Government incarcerates material witnesses, it has “taken” their property, and that one dollar a day is not just compensation for this “taking” under the Fifth Amendment. Alternatively, they argue that payment of only one dollar a day before trial, when contrasted with the $20 a day paid to witnesses attending a trial, is a denial of due process of law.

But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. See Monongahela Bridge Co. v. United States, 216 U. S. 177, 193 (modification of bridge obstructing river); United States v. Hobbs, 450 F. 2d 935 (Selective Service Act); United States v. Dillon, 346 F. 2d 633, 635 (representation of jndigents by court-appointed attorney); Roodenko v. United States, 147 F. 2d 752, 754 (alternative service for conscientious objectors); cf. Kunhardt & Co. v. United States, 266 U. S. 537, 540. It is beyond dispute that there is in fact a public obligation to provide evidence, see United States v. Bryan, 339 U. S. 323, 331; Blackmer v. United States, 284 U. S. 421, 438, and that this obligation persists no matter how financially burdensome it may be. The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. The detention of a material witness, in short, is simply not a “taking” under the Fifth Amendment, and the level of his compensation, therefore, does not, as such, present a constitutional question. “[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States, 250 U. S. 273, 281.

Similarly, we are unpersuaded that the classifications drawn by § 1821 as we have construed it are so irrational as to violate the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U. S. 497, 499. The statute provides $20 per diem compensation to a witness who is in necessary attendance on a court, but that fee is payable to any witness, incarcerated or not. During the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.

We cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and throughout that period of confinement the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify. As the Court of Appeals correctly observed, “ [Governmental recognition of its interest in having persons appear in court by paying them for that participation in judicial proceedings, does not require that it make payment of the same nature and extent to persons who are held available for participation in judicial proceedings should it prove to be necessary. That the government pays for one stage does not require that it pay in like manner for all stages.” 452 F. 2d, at 955.

We do not pass upon the wisdom or ultimate fairness of the compensation Congress has provided for the pretrial detention of material witnesses. We do not decide “that a more just and humane system could not be devised.” Dandridge v. Williams, 397 U. S. 471, 487. Indeed, even though it opposed granting the petition for certiorari in the present case, the Government found it “obvious” that “the situation is not a satisfactory one,” and we were informed at oral argument that a legislative proposal to increase the per diem payment to detained witnesses will shortly be submitted by the Department of Justice to the Office of Management and Budget for review. But no matter how unwise or unsatisfactory the present rates might be, the Constitution provides no license to impose the levels of compensation we might think fair and just. That task belongs to Congress, not to us.

The judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Brennan,

concurring in part and dissenting in part.

I am in full agreement with much of the majority’s opinion. Construing 28 U. S. C. § 1821, which authorizes compensation at the rate of $20 per day to “[a] witness attending in any court of the United States . . . the Court holds today that a person held in jail as a material witness is “attending in . . . court” each day that the pertinent judicial proceeding is underway, even if the witness is not physically present in the courtroom. But the majority also holds that a jailed witness is not “attending in” court prior to the inception of the judicial proceeding, even though he is held in custody for no other purpose than to insure his appearance to give testimony at trial. I reject that conclusion because, in my view, it works an obvious and severe hardship on an incarcerated witness, because it is compelled neither by the language nor the purposes of the statute, and because the statute so construed would be unconstitutional under the Due Process Clause of the Fifth Amendment.

I

In addition to providing compensation of $20 per day for “each day’s attendance and for the time necessarily occupied in going to and returning from” the court where the witness is to testify, the statute also authorizes, in certain cases, an “additional allowance of $16 per day for expenses of subsistence.” 28 U. S. C. § 1821. And the same statute states that “[w]hen a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of $1 per day.”

In construing these statutory provisions, petitioners (citizens of Mexico who entered the United States illegally), respondent, and the Court agree on two points: first, that a jailed material witness is entitled to compensation of $1 per day for each day that he spends in confinement; and second, that a jailed material witness is entitled to the additional compensation of $20 per day for each day that a trial is in progress and that the witness is physically present in the courtroom. The point in contention is whether or not the jailed witness should receive the additional compensation of $20 per day during the time after he is taken into custody, but before he is physically present in court. Petitioners contend that he should. Respondent contends that he should not. The Court holds that he should receive the compensation for each day that the trial is in progress (whether or not he actually appears in court), but that he should not receive it for the days spent in custody before the trial is under way.

The Court predicates its conclusion on a superficially plausible reading of the literal terms of the statute:

“The petitioners’ interpretation of ‘attendance’ as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time there is literally no court in session in which he could conceivably be considered to be in attendance.” Ante, at 583.

The Court holds, in other words, that if the court is not in session, then a jailed material witness cannot be said to be “attending in . . . court.” (Emphasis added.) But the correct interpretation of the phrase, “in court,” is not as obvious as it would at first appear. Read literally, the phrase would appear to require that the witness spend the day within the four walls of the courtroom, or, at the very least, the courthouse. Yet the Court recognizes, and the Government concedes, that a witness can be “in court” even if he is in a hotel room or a restaurant. I share the view that physical presence in the courtroom is not required to bring a witness within the reach of the statute. But I cannot accept the Court’s conclusion that a witness is “in court” or not “in court,” depending on whether or not the judicial proceeding is technically under way.

Unfortunately, the Government has not described its practice in compensating witnesses under § 1821 with the kind of specificity that would simplify our analysis. It would seem plausible, however, to assume that the practice might be as follows: A witness subpoenaed to appear on Tuesday morning may spend all of Monday en route to the courthouse, only to learn on Tuesday that the case will not be called as early as expected. If the witness waits in the witness room all day each day until the case is finally called on Friday, it would seem reasonable to assume that he is entitled to compensation for his attendance on Tuesday, Wednesday, and Thursday, even though the proceeding did not begin until Friday. Whatever the Government’s practice in such a case, I would hold that the payment of compensation for those three days would be permitted, if not required, by the terms of the statute. Yet under the Court’s rigid analysis of the phrase, “in court,” it would be unlawful for the Government to compensate the witness, except for the days spent traveling to and from the courthouse, for any day except Friday. The Court is apparently bound to hold that notwithstanding the physical presence of the witness in the courthouse, he was not “in court” because the court was not yet in session.

The obvious shortcoming of the Court’s analysis is its disregard, in construing the critical statutory phrase, of the purposes of the statute. The statute is grounded on the view that a subpoena to appear and give testimony will often entail substantial disruption of one’s affairs, a loss of income, and considerable inconvenience. These dislocations, for which Congress has authorized compensation, will exist whether a witness is required to wait in a witness room, a prosecutor’s office, a courtroom, or a hotel room. For that reason, the Court is correct in its conclusion that a witness may be “in court” for the purposes of the statute even though he is not, in fact, in the courthouse. But that same purposive analysis refutes the Court’s suggestion that the pendency of a judicial proceeding is a precondition to the payment of witness fees. Surely the fact that the court is not yet in session is small comfort to the witness who is required to appear and wait for the calling of his case. His daily loss of income does not mysteriously increase as soon as the judge appears behind the bench. Nor, if he is unlucky enough to be held in custody for want of bail, does the infringement on his liberty become less burdensome or the assault on his dignity less severe. Whatever the status of the judicial proceeding, it remains clear that the witness is held in jail for a single purpose: to serve the interests of the court. And it is the unquestioned purpose of the statute to insure that witnesses who are inconvenienced to serve the interests of the court are compensated, at least in part, for the service they have given. I cannot ascribe to Congress the essentially irrational view that a day spent in attendance on a pending trial is inherently a day more worthy of compensation than a day spent in attendance on a trial that is not yet under way. Nothing should or was intended to turn on whether a trial is actually in progress.

II

My conclusion that the majority has misconstrued the statute is fortified by the conviction that the statute, as interpreted by the Court, would be invalid under the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 (1954). The majority discerns a

“reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and throughout that period of confinement the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify.” Ante, at 590.

In my view, that assertion is inadequate to the task of justifying this discriminatory classification scheme. First, as construed by the Court, the scheme clearly does not treat jailed material witnesses in a manner which is in any sense equivalent to the treatment of subpoenaed witnesses. Rather, the Court establishes two distinct classes of inconvenienced witnesses: those who are burdened by a subpoena to appear, and who receive compensation for each day of dislocation; and those who are burdened by a term in jail, but who are compensated only for the days of dislocation which follow the inception of trial. The Court apparently denies this inequality, asserting that “[d]uring the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.” Ante, at 590. But the appropriate point of comparison is not the treatment of incarcerated witnesses before trial with the treatment of nonincarcerated witnesses before trial. The statement that a subpoenaed witness receives no compensation for the period which precedes the onset of trial is true but irrelevant. Naturally the witness receives no compensation; he has sustained no injury. By hypothesis, the subpoena directs the witness to appear at a time when trial is at least scheduled to begin. In practical effect, therefore, the subpoenaed witness is compensated in full for each day of inconvenience, while the jailed witness may endure the “inconvenience” of a lengthy term in jail and receive significant compensation only for the days of confinement which happen to coincide with trial.

Moreover, this discrimination- against jailed witnesses cannot be justified by reference to the fact — again, true but irrelevant — that the “witness has a public obligation to testify.” Ante, at 590. The identical “public obligation” is imposed on the subpoenaed witness, and the existence of the obligation does not rationalize the heavier burden placed on the jailed witness in seeking compensation for his days of dislocation. And since the jailed witness carries the same obligation to testify both before and after trial has begun, its existence does not explain a scheme that provides significant compensation only for days of confinement during trial.

If the statutory scheme is to be upheld, it can only be on the theory that Congress has made a rational attempt to impose some limits on the amount of money which will be paid out to any given witness under the scheme. I can assume that the imposition of such a ceiling on expenditures is, in itself, a permissible goal. And since witness fees could, in some instances, reach staggering amounts, I can assume that Congress has the power to impose an across-the-board cutoff — e. g., $1,000 per witness — on the fees allowable under the Act. But these assumptions do not reheve us of the obligation to determine whether the particular approach Congress has used in imposing a cutoff is sufficiently rational to withstand constitutional 'attack. Cf. Dandridge v. Williams, 397 U. S. 471, 483-487 (1970). I conclude that it is not.

As the Court construes the. statutory scheme, a material witness who is held in jail for four months in anticipation of a one-day trial will receive in compensation $141— $1 per day for each of 120 days, and $21 for the day of trial. By contrast, a witness who is subpoenaed to appear on the first day of trial but who, as a result of preliminary motions, adjournment, and miscellaneous delays, is not called to appear until two weeks have passed, will receive $280 in compensation, plus a subsistence allowance. However legitimate the governmental, interest in imposing some limit on the expenditure of money to witnesses, the mere assertion of that interest cannot save a classification scheme that pays to a witness who spends two weeks in a hotel a sum of money greatly in excess of the amount made available to one who spends four months in the less congenial atmosphere of a courthouse jail. I can see no rational basis for this appalling difference in treatment.

The classification scheme we uphold today cannot be considered a rational attempt to preserve the Government’s financial resources. Regrettably, it seems to me little more than an attempt to punish those who are unable to give bail as a guarantee of their appearance at trial, and who, almost by definition, lack the power and resources to remedy their unfortunate plight. As my Brother Douglas points out, “[w]e cannot allow the Government's insistent reference to these Mexican citizens as ‘deportable aliens’ to obscure the fact that they come before us as innocent persons who have not been charged with a crime or incarcerated in anticipation of a criminal prosecution.” Post, at 604. They have been held in custody only to insure their presence at trial. I would not impute to Congress an intent to penalize these petitioners by holding the injury they have suffered less worthy of compensation than the inconvenience to a witness who is subpoenaed to appear at trial. I would hold, consistently with a fair reading of the statute in light of its purposes, that petitioners are entitled to compensation at the rate of $21 per day for each day they spend in custody while awaiting the call to appear in court.

Mr. Justice Douglas,

dissenting.

In my view, petitioners, all indigents, have been subject to discrimination “so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U. S. 497, 499.

Petitioners, citizens of Mexico allegedly brought into the United States illegally, belong to that class of persons who as material witnesses can be subpoenaed to testify. Each must suffer at least limited invasion of his personal liberty to fulfill his public obligation to provide evidence. See United States v. Bryan, 339 U. S. 323, 331; Blair v. United States, 250 U. S. 273, 281. Petitioners, however, also belong to a discrete subclass— those whose presence it might be impractical to secure by subpoena and thus were subject to detention pursuant to former Fed. Rule Crim. Proc. 46 (b) if they could not post bail. The deprivation they suffer is longer and more extensive than that of the witness merely subject to a subpoena. They may spend months in jail awaiting the few minutes or hours they will spend testifying. Unlike other witnesses, they are not free to come or go while the trial is not actually in progress. Nevertheless, the justification for infringing their liberty remains the same. Former Rule 46 (b) was conceived as a tool to insure that the witness is available to testify, and any time spent incarcerated is spent as a direct result of the obligation that burdens all material witnesses. The comparison we are concerned with, then, is between the compensation paid to the incarcerated witness during the entire period his freedom to come or go is curtailed and the compensation paid to a nonincarcerated witness during the entire period he is subject to restraint. Although it is true, as the majority notes, that the nonincarcerated witness is paid nothing at all while court is not in session, the two classes are hardly comparably situated at the time, for the nonincarcerated witness is not subject to any substantial restraint as a result of his subpoena.

Congress has seen fit to compensate all material witnesses at the per diem rate of $20 for each day’s attendance “in any court” (as defined by the majority) and for the necessary travel time. 28 U. S. C. § 1821. Yet, Congress compensates those incarcerated pursuant to former Rule 46 (b) at the per diem rate of only $1. Thus, not only are petitioners subject to more extensive deprivation of personal freedom, they also are denied equivalent compensation while waiting to testify. Because former Rule 46 (b) provided that only witnesses who failed to post bail might be incarcerated, this discrimination in practice affected just the indigent and resulted, therefore, in a suspect classification based upon wealth. This invidious discrimination against the poverty-stricken cannot be supported by some speculative rational justification. Ortwein v. Schwab, post, p. 661 (Douglas, J., dissenting) ; United States v. Kras, 409 U. S. 434, 457 (opinion of Douglas and Brennan, JJ.); Boddie v. Connecticut, 401 U. S. 371, 383 (Douglas, J., concurring in result). Surely, the Government's desire to avoid the costs of compensation in addition to the increased costs of food, lodging, and security does not rise above that level. See Boddie v. Connecticut, supra, at 382; Shapiro v. Thompson, 394 U. S. 618, 633.

The majority “cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial.” I am not certain I can agree even with that position. The magic transition period under the statute. as construed by the majority is the beginning of trial. I find the distinction wholly arbitrary. I do not see how it bears any relevance to the quality of confinement; petitioners sacrifice their time waiting to testify whether or not court is in session.

Griffin v. Illinois, 351 U. S. 12, held that an indigent defendant is denied equal protection of the laws if he is barred from appealing on equal terms with other defendants solely because of his indigence. In Bandy v. United States, 82 S. Ct. 11, 7 L. Ed. 2d 9 (Douglas, J., in chambers), I concluded that “no man should be denied release [pending trial or judicial review] because of indigence.” Id., at 13, 7 L. Ed. 2d, at 11. This principle seems ever clearer and more forceful to me in circumstances where the imprisoned have not been charged with or convicted of a crime. We cannot allow the Government's insistent reference to these Mexican citizens as “deportable aliens” to obscure the fact that they come before us as innocent persons who have not been charged with a crime or incarcerated in anticipation of a criminal prosecution. It is true, of course, that petitioners do not challenge the constitutionality of confining a material witness. But, in their prayer for relief, they seek to enjoin the Government “from any further incarceration of any person under such rule under the present interpretation of 28 U. S. C. § 1821 at one dollar ($1.00) per day total payment.” I conclude that petitioners are entitled to this relief unless they are released on their personal recognizance.

       Fed. Rule Crim. Proc. 46 (b), at the time this case arose, and before Rule 46 was amended to conform to the Bail Reform Act of 1966, provided:
      “Bail for Witness.
      “If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpoena, the court or commissioner may require him to give bail for his appearance as a witness, in an amount fixed by the court or commissioner. If the person fails to give bail the court or commissioner may commit him to the custody of the marshal pending final disposition of the proceeding in which the testimony is needed, may order his release if he has been detained for an unreasonable length of time and may modify at any time the requirement as to bail.”

       The statute provides in full:
      “§ 1821. Per diem and mileage generally; subsistence.
      “A witness attending in any court of the United States, or before a United States commissioner, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall receive $20 for each day’s attendance and for the time necessarily occupied in going to and returning from the same, and 10 cents per mile for going from and returning to his place of residence. Regardless of the mode of travel employed by the witness, computation of mileage under this section shall be made on the basis of a uniform table of distances adopted by the Attorney General. Witnesses who are not salaried employees of the Government and who are not in custody and who attend at points so far removed from their respective residence as to prohibit return thereto from day to day shall be entitled to an additional allowance of $16 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the place of attendance: Provided, That in lieu of the mileage allowance provided for herein, witnesses who are required to travel between the Territories and possessions, or to and from the continental United States, shall be entitled to the actual expenses of travel at the lowest first-class rate available at the time of reservation for passage, by means of transportation employed: Provided further, That this section shall not apply to Alaska.
      “When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of $1 per day.
      “Witnesses in the district courts for the districts of Canal Zone, Guam, and the Virgin Islands shall receive the same fees and allowances provided in this section for witnesses in other district courcs of the United States.”

       By way of illustration, the witness who sets out on Monday in order to be available to testify on Tuesday; but who is not actually called to the court for testimony until Friday; and who returns home on Saturday, will receive $20 for every day from Monday through Saturday. But the material witness who is incarcerated on Monday, held until Friday when he testifies, and then released, will receive one dollar for every day and an additional $20 only for Friday — the day he actually testifies.

       Both parties bolster their statutory interpretations with arguments based upon the statutory language. The petitioners point out that incarcerated witnesses are not specifically excluded from those entitled to receive the $20 fee for attending court, though they are excluded from those entitled to the $16-a-day subsistence allowance. Hence, they conclude that Congress intended that they be eligible for the $20-per-day fee. But that argument proves no more than that Congress intended a detained witness to be eligible for the $20 fee for every day he is “attending” court; it does not indicate that Congress intended that every day of incarceration is the equivalent of a day attending court and compensable at the rate of $20 per day.
      The Government supports its position by pointing out that the statute allocates to a detained witness $1 per day "in addition to his subsistence,” not $1 a day in addition both to subsistence and to a witness fee of $20. But it is difficult to give any weight to this argument, since the Government acknowledges that a detained witness is to be paid $20 a day at least for days of physical attendance in court. Therefore, according to the Government’s own interpretation, the $l-a-day clause can hardly be exclusive.

        “And be it jurther enacted, That the compensation to jurors and witnesses, in the courts of the United States, shall be as follows, to wit: to each grand and other juror, for each day he shall attend in court, one dollar and twenty-five cents; and for travelling, at the rate of five cents per mile, from their respective places of abode, to the place where the court is holden, and the like allowance for returning; to the witnesses summoned in any court of the United States, the same allowance as is above provided for jurors.” Act of Feb. 28, 1799, c. 19, § 6, 1 Stat. 626.

       Cf., e. g., Hunter v. Russell, 59 F. 964, 967-968; Whipple v. Cumberland Cotton Mfg. Co., 29 F. Cas. 933 (No. 17,515); Hance v. McCormick, 11 F. Cas. 401 (No. 6,009).
      The Department of Justice regulations repeat the statutory directive that a witness is to be paid $20 for “each day’s attendance.” Department of Justice, United States Marshal’s Manual 340.14 (1971). There is no explicit requirement of physical presence in the courtroom.

       The legislative history of the compensation provision is unenlightening. Though Congress early provided compensation for witnesses attending in the courts of the United States, no specific provision was made for incarcerated witnesses. See, e. g., Act of May 8, 1792, c. 36, § 3, 1 Stat. 277; Act of June 1, 1796, c. 48, § 2, 1 Stat. 492; Act of Feb. 28, 1799, c. 19, § 6, 1 Stat. 626. In 1853, Congress provided for payment to a witness of $1.50 a day while attending court, and specifically indicated that a detained witness was to be paid $1 a day over and above his subsistence. Act of Feb. 26, 1853, c. 80, § 3, 10 Stat. 167. In 1926, Congress eliminated the specific provision for compensation to detained witnesses and raised the per diem compensation for attendance in court. Act of Apr. 26, 1926, c. 183, §§ 1-3, 44 Stat. 323-324.
      In the following two decades, Congress changed the levels of compensation but did not specifically provide for compensation to detained witnesses. See Act of June 30, 1932, c. 314, § 323, 47 Stat. 413; Act of Mar. 22, 1935, c. 39, § 3, 49 Stat. 105; Act of Dec. 24, 1942, c. 825, § 1, 56 Stat. 1088. When the Judicial Code was revised in 1948, the provision for per diem compensation to detained witnesses was again absent, Act of June 25, 1948, c. 646, § 1821, 62 Stat. 950, but was added the following year, Act of May 24, 1949, c. 139, § 94, 63 Stat. 103, with the explanation by the House Committee on the Judiciary that it had been “inadvertently omitted.” H. R. Rep. No. 352, 81st Cong., 1st Sess., 16. By a separate measure, witness fees were increased. Act of May 10, 1949, c. 96, 63 Stat. 65. While the per diem fee, the subsistence fee, and the travel allowance have all been increased, the $1 a day for incarcerated witnesses has remained constant. See Act of Aug. 1, 1956, c. 826, 70 Stat. 798; Act of Mar. 27, 1968, Pub. L. 90-274, § 102 (b), 82 Stat. 62.
      The petitioners urge that this history of steadily increasing fees at least indicates a congressional intent to compensate witnesses fully for their lost time and income, and that since they suffer these losses throughout the period of incarceration they ought to receive the $20 for every day of confinement. But Congress recognized that witness fees could not fully compensate witnesses for their lost time or income. See, e. g., S. Rep. No. 891, 90th Cong., 1st Sess., 36; S. Rep. No. 187, 81st Cong., 1st Sess., 2. The petitioners point to no hint in any of the reports on the various changes in compensation levels which could justify the conclusion that Congress intended to provide more than $1 a day to detained witnesses for the period of their pretrial confinement.

       It was also error to affirm the summary judgment for the Government because there was a genuine issue of material fact whether the petitioners had ever been paid for the days that they actually attended court. See Fed. Rule Civ. Proc. 56 (c); Arenas v. United States 322 U. S. 419, 432-434; Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620, 623-629. They alleged in their amended complaint that on many occasions they testified for the Government and were not paid $20 a day for such testimony. The Government agreed that they were entitled to that compensation, but contended in its answer that they had been so paid. No affidavits or other evidence was submitted to support that contention, and the Court of Appeals in affirming summary judgment for the Government did not comment on this clear factual dispute.
      Since a remand is required, we also note that the District Court never explicitly ruled on the petitioners’ motion to have this suit declared a class action under Fed. Rule Civ. Proc. 23, and the Court of Appeals did not discuss the issue. It will, of course, be appropriate on remand for the District Court to determine whether this suit was properly brought as a class action, and we accordingly express no view on that issue.

       See Stein v. New York, 346 U. S. 156, 184 (“The duty to disclose knowledge of crime ... is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness”); Barry v. United States ex rel. Cunningham, 279 U. S. 597, 616-618.

       “[I]t may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He who will live by society must let society live by him, when it requires to.” 8 J. Wigmore, Evidence § 2192, p. 72 (J. McNaughton rev. 1961).

       There is likewise no substance to the petitioners’ argument that the $l-a-day payment is so low as to impose involuntary servitude prohibited by the Thirteenth Amendment. Cf. Griffin v. Breckenridge, 403 U. S. 88, 104-105; Jones v. Alfred H. Mayer Co., 392 U. S. 409, 437-444.

       Fed. Rule Crim. Proc. 46 (b), at the time this case arose, provided that where a witness’ testimony was “material” in any criminal proceeding and where it might become impracticable to secure the presence of the witness by subpoena, the court might require the witness to give bail for his appearance. If the witness failed to give bail, the court might order his incarceration pending final disposition of the proceeding in which his testimony was needed.

       The Government argues at length that Congress did not intend to provide full compensation to a witness or to insure the witness against all lost earnings. See Brief for United States 16-24. The Government does not dispute, however, that the congressional purpose was to provide at least partial compensation for the expenses, dislocation, and income loss attributable to compelled attendance as a witness.

       Of course, where the Government detains a material witness pending trial, its total financial burden is not limited to the payment of $1 per day under 28 U. S. C. § 1821. The Government also assumes the expense of feeding and housing the incarcerated witness. Nevertheless, I cannot conclude that this added expense affords a rational basis for imposing an arbitrary ceiling on the payment of witness fees to a jailed witness. First, the Government makes no attempt to justify the statute on this ground, and we are not advised of the marginal cost to the Federal Government of holding a material witness in an existing penal facility. Second, the legislative history of the scheme evidences no particular congressional concern for the costs of incarceration, nor any effort to limit the payment of witness fees because of this added expense. Third, even if the marginal costs of incarceration are substantial, that fact cannot explain the absence of any limits whatsoever on the witness fees that can be paid to a nonincarcerated witness. And since a nonincarcerated witness may be eligible for a subsistence allowance of $16 per day in addition to the $20 daily fee, the amount of money involved can be very large indeed. Finally, and most important, while the Government has an obvious interest in limiting its total expenditure on witnesses — including the payment of fees, subsistence allowances, and incarceration costs — that interest cannot explain the payment of higher per diem fees to nonincarcerated witnesses than to incarcerated witnesses. Even if the cost of keeping a witness in jail is $36 per day, which is the amount paid each day to a nonincarcer-ated witness, it does not follow that the payments are equivalent from the standpoint of the witnesses. The jailed witness is inconvenienced no less than the subpoenaed witness, yet his rate of compensation is dramatically, and inexplicably, less.

         Nor can the scheme be justified on the theory that one who is too poor to give bail deserves only minimal compensation because he is unlikely to incur any great financial loss during the period of incarceration. The fact that a witness is unable to give bail is hardly an indication that he is unemployed. In any case, the statute is designed to compensate the witness not only for the loss of income, but also for the inconvenience and disruption of his personal affairs. Inconvenience is not the exclusive property of the rich. Moreover, the witness who cannot give bail is likely to be the one most in need of compensation to pay the expenses his family will inevitably incur while he waits in jail for the beginning of trial. As enacted by Congress, the scheme was thought to provide compensation in an amount that is “more or less arbitrary, but considered to be reasonably fair to the average witness.” S. Rep. No. 187, 81st Cong., 1st Sess., 2. There is no indication that Congress thought some witnesses were so poor that they could be deemed indifferent to compensation.
      Thus, the Government’s assertion that “payment of $21 per day would serve as a chance bonus” for persons like petitioners who presumably earn less than that amount per day, Brief for United States 31, misses the point of the statutory scheme. By that reasoning, the scheme would offer the same “chance bonus” to a witness who earns $50,000 per year, but who is not required to perform a daily service to earn that income. Wealth is not a guarantee that income loss is substantial, just as poverty is not a guarantee that the income loss is trivial.

       Rule 46 (b), at the time this case arose and before Rule 46 was amended to conform it to the Bail Reform Act of 1966, read:
      “Bail for Witness.
      “If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpoena, the court or commissioner may require him to give bail for his appearance as a witness, in an amount fixed by the court or commissioner. If the person fails to give bail the court or commissioner may commit him to the custody of the marshal pending final disposition of the proceeding in which the testimony is needed, may order his release if he has been detained for an unreasonable length of time and may modify at any time the requirement as to bail.”

         Mr. Justice Black and Mr. Justice Frankfurter dissented from submission of the original Rules of Criminal Procedure. 323 U. S. 821.
      Mr. Justice Black and I in 1966 opposed the submission of certain amendments to the Rules of Criminal Procedure to the Congress. Mr. Justice Black's statement is to be found at 383 U. S. 1032, mine at 383 U. S. 1089. We thought at the time that some of the amendments presented serious constitutional questions.
      The fact that the Court approved the Rules without reading them or debating them or weighing their merits does not, of course, preclude a challenge to their constitutionality in a given case.
      But the imprimatur of this Court is on the Rules, and that gives them mighty weight. It is possible to read former Rule 46 (b) as permitting release on personal recognizance. But experience has shown that judges have not so read it. The result, as I indicate in this opinion, is that former Rule 46 (b) has borne down heavily on indigents who would be good risks but could not put up the money to buy a bail bond. Former Rule 46 (b) as so construed — and as applied in the present case — is therefore plainly unconstitutional. Filling of the jails of San Antonio with men whose only crime is the desire to find work and holding them there at the caprice of the prosecutor is shocking, to say the very least — and traceable to the easy, offhand way in which the Court has seemingly approved many Rules which touch not only matters of public security but individual liberties as well.

       The Solicitor General asserts that “it is certainly not unreasonable or irrational for Congress to authorize a minimal sum as payment to deportable aliens. There is no indication that illegal aliens, like petitioners, even if employed, would have earned wages averaging $20 or $21 per day for a period of 30 or 60 days or longer.” This prompts two comments. In explaining a predecessor of the current statute, the Senate Report stated:
      “The amounts arrived at in this bill are considered to be more fair than presently existing amounts, although it is recognized that certain witnesses will not, under the proposed rates, be adequately compensated. In order to fairly compensate everyone appearing as a witness it would be necessary to have either a graduated scale of fees, or, leave the amount of such fees in the discretion of the judge. Neither was considered feasible, and therefore the amounts arrived at herein are more or less arbitrary, but considered to be reasonably fair to the average witness.” S. Rep. No. 187, 81st Cong., 1st Sess., 2.
      Also, if the statute is to be measured as it applies to aliens, it surely creates a suspect classification. See Takahashi v. Fish & Game Comm’n, 334 U. S. 410.

       For each day the Government compensates a witness at the per diem rate of $20, it also pays the witness $16 to cover subsistence expenses. I cannot believe that it costs the Government more than $16 a day to feed an incarcerated witness. In any event, the witness should not be taxed when he is imprisoned for the convenience of the Government.

       The majority tracks the legislative history of § 1821 and concludes that it is “unenlightening.” When compensation was first paid to incarcerated witnesses in 1853, Act of Feb. 26, 1853, § 3, 10 Stat. 167, they were paid $1 per day, or 50$ less than a witness merely attending court. No subsistence was paid, and we can assume that the differential related to this factor. Over the years, Congress has increased the compensation paid to material witnesses and added subsistence payments without increasing the compensation paid to incarcerated witnesses. Congress has not advanced any justification.


author: Mr. Justice Marshall Me. Justice Douglas,

text:
    BRADLEY et al. v. UNITED STATES
    No. 71-1304.
    Argued January 8, 1973
    Decided March 5, 1973
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, BlackmuN, Powell, and RehNquist, JJ., joined, and in Part I of which BreNNAN and White, JJ., joined. Brektnan and White, JJ., filed a statement concurring in the judgment, post, p. 611. Douglas, J., filed a dissenting opinion, post, p. 612.

      William P. Homans, Jr., argued the cause and filed a brief for petitioners.

      Deputy Solicitor General Lacovara argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Harriet S. Shapiro, and Jerome M. Feit

      Briefs of amici curiae were filed by Harvey A. SUverglate for Ralph De Simone; by Irwin Klein for Gerson Nagelberg et al.; and by Fred M. Vinson, Jr., and Robert S. Erdahl for seven women prisoners.

   Mr. Justice Marshall

delivered the opinion of the Court.

In this case we must decide whether a District Judge may impose a sentence of less than five years, suspend the sentence, place the offender on probation, or specify that he be eligible for parole, where the offender was convicted of a federal narcotics offense that was committed before May 1, 1971, but where he was sentenced after that date. Petitioners were convicted of conspiring to violate 26 U. S. C. § 4705 (a) (1964 ed.) by selling cocaine not in pursuance of a written order form, in violation of 26 U. S. C. § 7237 (b) (1964 ed.). The conspiracy occurred in March 1971. At that time, persons convicted of such violations were subject to a mandatory minimum sentence of five years. The sentence could not be suspended, nor could probation be granted, and parole pursuant to 18 U. S. C. § 4202 was unavailable. 26 U. S. C. § 7237 (d) (1964 ed. and Supp. V). These provisions were repealed by §§ 1101 (b)(3)(A) and (b) (4) (A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of that Act was May 1, 1971, five days before petitioners were convicted.

Each petitioner was sentenced to a five-year term. On appeal to the Court of Appeals for the First Circuit, various points, not here relevant, were raised. Following affirmance of their convictions, petitioners moved that their sentences be vacated and their cases be remanded to the District Court for resentencing pursuant to Fed. Rule Crim. Proc. 35. In their motion they contended that the District Court should have considered “certain sentencing alternatives, including probation, suspension of sentence and parole” which became available on May 1, 1971. The Court of Appeals considered this motion as an “appendage” to the appeal. It held that the specific saving clause of the 1970 Act, § 1103 (a), read against the background of the general saving provision, 1 U. S. C. § 109, required that “narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense,” and that “under the mandate of § 109 the repealed statute, §7237 (d) is ‘[to] be treated as still remaining in force.’ ” 455 F. 2d 1181, 1190, 1191. Accordingly, the Court of Appeals held that the trial judge lacked power to impose a lesser sentence.

We granted the petition for writ of certiorari, 407 U. S. 908 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F. 2d 103 (CA9 1971).

I

At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. See Bell v. Maryland, 378 U. S. 226, 230 (1964); Norris v. Crocker, 13 How. 429 (1852). Abatement by repeal included a statute’s repeal and re-enactment with different penalties. See 1 J. Sutherland, Statutes and Statutory-Construction § 2031 n. 2 (3d ed. 1943). And the rule applied even when the penalty was reduced. See, e. g., The King v. M‘Kenzie, 168 Eng. Rep. 881 (Cr. Cas. 1820); Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See generally Note, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121— 130 (1972).

Section 1103 (a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:

“Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] ... or abated by reason thereof.”

Petitioners contend that the word “prosecutions” in § 1103 (a) must be given its everyday meaning. When people speak of prosecutions, they usually mean a proceeding that is under way in which guilt is to be determined. In ordinary usage, sentencing is not part of the prosecution, but occurs after the prosecution has concluded. In providing that “[p]rosecutions . . . shall not be affected,” § 1103 (a) means only that a defendant may be found guilty of an offense which occurred before May 1, 1971. The repeal of the statute creating the offense does not, on this narrow interpretation of § 1103 (a), prevent a finding of guilt. But § 1103 (a) does nothing more, according to petitioners.

Although petitioners’ argument has some force, we believe that their position is not consistent with Congress’ intent. Rather than using terms in their everyday sense, “[t]he law uses familiar legal expressions in their familiar legal sense.” Henry v. United States, 251 U. S. 393, 395 (1920). The term “prosecution” clearly imports a beginning and an end. Cf. Kirby v. Illinois, 406 U. S. 682 (1972); Mempa v. Rhay, 389 U. S. 128 (1967).

In Berman v. United States, 302 U. S. 211 (1937), this Court said, “Final judgment in a criminal case means sentence. The sentence is the judgment. Miller v. Aderhold, 288 U. S. 206, 210; Hill v. Wampler, 298 U. S. 460, 464.” Id., at 212. In the legal sense, a prosecution terminates only when sentence is imposed. See also Korematsu v. United States, 319 U. S. 432 (1943); United States v. Murray, 275 U. S. 347 (1928); Affronti v. United States, 350 U. S. 79 (1955). So long as sentence has not been imposed, then, § 1103 (a) is to leave the prosecution unaffected.

We therefore conclude that the Court of Appeals properly rejected petitioners’ motion to vacate sentence and remand for resentencing. The District Judge had no power to consider suspending petitioners’ sentences or placing them on probation. Those decisions must ordinarily be made before the prosecution terminates, and § 1103 (a) preserves the limitations of § 7237 (d) on decisions made at that time.

II

The courts of appeals that have dealt with this problem have failed, however, to consider fully the special problem of the parole eligibility of offenders convicted before May 1, 1971. The Seventh and Ninth Circuits hold that such offenders are eligible for parole. The First Circuit in this case stated that petitioners were “ineligible for suspended sentences, parole, or probation.” 455 F. 2d, at 1191 (emphasis added).

In the federal system, offenders may be made eligible for parole in two ways. Any federal prisoner “whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of” his sentence. 18 U. S. C. § 4202. Alternatively, the District Judge, “[u]pon entering a judgment of conviction . . . may (1) designate in the sentence of imprisonment imposed a minimum term, at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served, in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.” 18 U. S. C. §4208 (a).

Section 1103 (a) clearly makes parole unavailable under the latter provision. As we have said, sentencing is part of the prosecution. The mandatory minimum sentence of five years must therefore be imposed on offenders wdio violated the law before May 1, 1971. And Congress specifically provided that § 4208 (a) does not apply to any offense “for which there is provided a mandatory penalty.” Pub. L. 85-752, § 7, 72 Stat. 847. In any event, the decision to make early parole available under §4208 (a) must be made “[u]pon entering a judgment of conviction,” which occurs before the prosecution has ended. Section 1103 (a) thus means that the District Judge cannot specify at the time of sentencing that the offender may be eligible for early parole.

That was the only question before the Court of Appeals, and it is therefore the only question before us. Petitioners’ motion, on which the Court of Appeals ruled, requested a remand so that the District Judge could consider the sentencing alternatives available to him under the Comprehensive Drug Abuse Prevention and Control Act of 1970. That Act, however, did not expand the choices open to the District Judge in this case, and the Court of Appeals correctly denied the motion to remand. The availability of parole under the general parole statute, 18 U. S. C. § 4202, is a rather different matter, on which we express no opinion.

Affirmed.

Mr. Justice Brennan and Mr. Justice White join Part I of the Court’s opinion and would affirm for the reasons there expressed. They are also of the view that § 1103 (a) forecloses the availability of parole under both 18 U. S. C. § 4202 and 18 U. S. C. § 4208 (a), and that even if this were debatable as to § 4202, the general saving statute, 1 U. S. C. § 109, clearly mandates that conclusion as to that section. They therefore do not join Part II of the Court’s opinion. •

Me. Justice Douglas,

dissenting.

The correct interpretation of the word “prosecutions” as used in § 1103 (a) of the 1970 Act was, in my view, the one given by the Court of Appeals of the Ninth Circuit in United States v. Stephens, 449 F. 2d 103, 105:

“Prosecution ends with judgment. The purpose of the section has been served when judgment under the old Act has been entered and abatement of proceedings has been avoided. At that point litigation has ended and appeal is available. Korematsu v. United States, 319 U. S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497 (1943). What occurs thereafter — the manner in which judgment is carried out, executed or satisfied, and whether or not it is suspended — in no way affects the prosecution of the case.”

The problem of ambiguities in statutory language is not peculiar to legislation dealing with criminal matters. And the question as to how those ambiguities should be resolved is not often rationalized. The most dramatic illustration, at least in modern times, is illustrated by Rosenberg v. United States, 346 U. S. 273, where a divided Court resolved an ambiguity in a statutory scheme against life, not in its favor. The instant case is not of that proportion, but it does entail the resolution of unspoken assumptions — those favoring the status quo of prison systems as opposed to those' who see real rehabilitation as the only cure of the present prison crises. As Mr. Justice Holmes said, “judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (dissenting opinion).

Judges do not make legislative policies. But in construing an ambiguous word in a criminal code, I would try to give it a meaning that would help reverse the long trend in this Nation not to consider a prisoner a “person” in the constitutional sense. Fay Stender, writing the introduction to Maximum Security, p. X, has described some of the “tremendously sophisticated defenses against the least increase in the enforceable human rights available to the prisoner.” (E. Pell ed., Bantam Books 1973).

A less strict and rigid meaning of the present Act would be only a minor start in the other direction. But it is one I would take.

       Petitioners Bradley, Helliesen, and Odell were found guilty also of unlawfully carrying a firearm during the commission of a felony, in violation of 18 U. S. C. §924 (c)(2). Each was sentenced to one year in prison; the sentences were suspended, and each was placed on probation for three years on these counts.

       See also United States v. McGarr, 461 F. 2d 1 (CA7 1972); United States v. Fiotto, 454 F. 2d 252 (CA2 1972).

       These cases involve determining whether a judgment in a criminal case is final for the purpose of appeal and determining whether the function of the trial judge has been concluded so that he may not alter the sentence previously imposed to include probation. The precise issues are, of course, different from the issue in this case. But these cases do show the point at which a prosecution terminates, and that is the issue here.

       Petitioners also argue that imposition of sentence precedes the suspension of sentence and the grant of probation. But the actions of the District Judge in imposing sentence and then ordering that it be suspended are usually so close in time that it would be unrealistic to hold that Congress intended so to fragment what is essentially a single proceeding.

       See n. 2, supra. We were informed at oral argument that “the Board of Parole is now considering as eligible for parole only defendants who have been sentenced in the Seventh and Ninth Circuits for narcotics offenses.” Tr. of Oral Arg. 23. Our disposition of this case has no bearing on the power of the Board of Parole to consider parole eligibility for petitioners under 18 U. S. C. § 4202. See infra, at 611.

       The decision to grant parole under §4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated. Whether § 1103 (a) or the general saving statute, 1 U. S. C. § 109, limits that decision is a question we cannot consider in this case.

      Mr. Justice Holmes also said:
      “[I]n substance the growth of the law is legislative. And this in a deeper sense than that that which the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which the courts most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. We mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in this way, new reasons more fitted to the time have been found for them, and that they gradually receive a new content and at last a new form from the grounds to which they have been transplanted. The importance of tracing the process lies in the fact that it is unconscious, and involves the attempt to follow precedents, as well as to give a good reason for them, and that hence, if it can be shown that one half of the effort has failed, we are at liberty to consider the question of policy with a freedom that was not possible before.” Common Carriers and the Common Law, 13 Am. L. Rev. 609, 630-631 (1879).


author: Mr. Justice Marshall Mr. Justice White, Mr. Justice Blackmun,

text:
    LINDA R. S. v. RICHARD D. et al.
    No. 71-6078.
    Argued December 6, 1972
    Decided March 5, 1973
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rbhnquist, JJ., joined. White, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 619. BlacicmuN, J., filed a dissenting opinion, in which BreNNAN, J., joined, post, p. 622.

      Windle Turley argued the cause and filed a brief for appellant.

      Robert W. Gauss, Assistant Attorney General of Texas, argued the cause for appellees. On the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, /. C. Davis and Pat Bailey, Assistant Attorneys General, and Samuel D. McDaniel.

   Mr. Justice Marshall

delivered the opinion of the Court.

Appellant, the mother of an illegitimate child, brought this action in United States District Court on behalf of herself, her child, and others similarly situated to enjoin the “discriminatory application” of Art. 602 of the Texas Penal Code. A three-judge court was convened pursuant to 28 U. S. C. § 2281, but that court dismissed the action for want of standing. 335 F. Supp. 804 (ND Tex. 1971). We postponed consideration of jurisdiction until argument on the merits, 405 U. S. 1064, and now affirm the judgment below.

Article 602, in relevant part, provides: “any parent who shall wilfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail for not more than two years.” The Texas courts have consistently construed this statute to apply solely to the parents of legitimate children and to impose no duty of support on the parents of illegitimate children. See Home of the Holy Infancy v. Kaska, 397 S. W. 2d 208, 210 (Tex. 1966); Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929 (1923). In her complaint, appellant alleges that one Richard D. is the father of her child, that Richard D. has refused to provide support for the child, and that although appellant made application to the local district attorney for enforcement of Art. 602 against Richard D., the district attorney refused to take action for the express reason that, in his view, the fathers of illegitimate children were not within the scope of Art. 602.

Appellant argues that this interpretation of Art. 602 discriminates between legitimate and illegitimate children without rational foundation and therefore violates the Equal Protection Clause of the Fourteenth Amendment. Cf. Gomez v. Perez, 409 U. S. 535 (1973) ; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S. 68 (1968). But cf. Labine v. Vincent, 401 U. S. 532 (1971). Although her complaint is not entirely clear on this point, she apparently seeks an injunction running against the district attorney forbidding him from declining prosecution on the ground that the unsupported child is illegitimate.

Before we can consider the merits of appellant’s claim or the propriety of the relief requested, however, appellant must first demonstrate that she is entitled to invoke the judicial process. She must, in other words, show that the facts alleged present the court with a “case or controversy” in the constitutional sense and that she is a proper plaintiff to raise the issues sought to be litigated. The threshold question which must be answered is whether the appellant has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962).

Recent decisions by this Court have greatly expanded the types of “personal stake [s]” which are capable of conferring standing on a potential plaintiff. Compare Tennessee Electric Power Co. v. TVA, 306 U. S. 118 (1939), and Alabama Power Co. v. Ickes, 302 U. S. 464 (1938), with Barlow v. Collins, 397 U. S. 159 (1970), and Association of Data Processing Service Organizations v. Camp, 397 U. S. 150 (1970). But as we pointed out only last Term, “broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” Sierra Club v. Morton, 405 U. S. 727, 738 (1972). Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction. See, e. g., Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 166-167 (1972); Flast v. Cohen, 392 U. S. 83, 101 (1968); Baker v. Carr, 369 U. S. 186, 204 (1962): Cf. Laird v. Tatum, 408 U. S. 1, 13 (1972).

Applying this test to the facts of this case, we hold that, in the unique context of a challenge to a criminal statute, appellant has failed to allege a sufficient nexus between her injury and the government action which she attacks to justify judicial intervention. To be sure, appellant no doubt suffered an injury stemming from the failure of her child’s father to contribute support payments. But the bare existence of an abstract injury meets only the first half of the standing requirement. “The party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute’s] enforcement.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (emphasis added). See also Ex parte Lévitt, 302 U. S. 633, 634 (1937). As this Court made plain in Flast v. Cohen, supra, a plaintiff must show “a logical nexus between the status asserted and the claim sought to be adjudicated. . . . Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power.” Id., at 102.

Here, appellant has made no showing that her failure to secure support payments results from the nonenforcement, as to her child’s father, of Art. 602. Although the Texas statute appears to create a continuing duty, it does not follow the civil contempt model whereby the defendant “keeps the keys to the jail in his own pocket” and may be released whenever he complies with his legal obligations. On the contrary, the statute creates a completed offense with a fixed penalty as soon as a parent fails to support his child. Thus, if appellant were granted the requested relief, it would result only in the jailing of the child’s father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the “direct” relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case.

The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself- is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U. S. 37, 42 (1971); Bailey v. Patterson, 369 U. S. 31, 33 (1962); Poe v. Ullman, 367 U. S. 497, 501 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State’s criminal laws. The District Court was therefore correct in dismissing the action for want of standing, and its judgment must be affirmed.

go or^ere^

Mr. Justice White,

with whom Me. Justice Douglas joins, dissenting.

Appellant Linda R. S. alleged that she is the mother of an illegitimate child and that she is suing “on behalf of herself, her minor daughter, and on behalf of all other women and minor children who have sought, are seeking, or in the future will seek to obtain support for so-called illegitimate children from said child’s father.” Appellant sought a declaratory judgment that Art. 602 is unconstitutional and an injunction against its continued enforcement against fathers of legitimate children only. Appellant further sought an order requiring Richard D., the putative father, “to pay a reasonable amount of money for the support of his child.”

Obviously, there are serious difficulties with appellant’s complaint insofar as it may be construed as seeking to require the official appellees to prosecute Richard D. or others, or to obtain what amounts to a federal child-support order. But those difficulties go to the question of what relief the court may ultimately grant appellant. They do not affect her right to bring this class action. The Court notes, as it must, that the father of a legitimate child, if prosecuted under Art. 602, could properly raise the statute’s underinclusiveness as an affirmative defense. See McLaughlin v. Florida, 379 U. S. 184 (1964); Railway Express Agency v. New York, 336 U. S. 106 (1949). Presumably, that same father would have standing to affirmatively seek to enjoin enforcement of the statute against him. Cf. Rinaldi v. Yeager, 384 U. S. 305 (1966); see also Epperson v. Arkansas, 393 U. S. 97 (1968). The question then becomes simply: why should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not appellant and her class? They are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws. Cf. Sierra Club v. Morton, 405 U. S. 727 (1972). Appellant, her daughter, and the children born out of wedlock whom she is attempting to represent have all allegedly been excluded intentionally from the class of persons protected by a particular criminal law. They do not get the protection of the laws that other women and children get. Under Art. 602, they are rendered nonpersons; a father may ignore them with full knowledge that he will be subjected to no penal sanctions. The Court states that the actual coercive effect of those sanctions on Richard D. or others “can, at best, be termed only speculative.” This is a very odd statement. I had always thought our civilization has assumed that the threat of penal sanctions had something more than a “speculative” effect on a person’s conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court’s surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children.

Unquestionably, Texas prosecutes fathers of legitimate children on the complaint of the mother asserting nonsupport and refuses to entertain like complaints from a mother of an illegitimate child. I see no basis for saying that the latter mother has no standing to demand that the discrimination be ended, one way or the other.

If a State were to pass a law that made only the murder of a white person a crime, I would think that Negroes as a class would have sufficient interest to seek a declaration that that law invidiously discriminated against them. Appellant and her class have no less interest in challenging their exclusion from what their own State perceives as being the beneficial protections that flow from the existence and enforcement of a criminal child-support law.

I would hold that appellant has standing to maintain this suit and would, accordingly, reverse the judgment and remand the case for further proceedings.

Mr. Justice Blackmun,

with whom Mr. Justice Brennan joins, dissenting.

By her complaint, appellant challenged Texas’ exemption of fathers of illegitimate children from both civil and criminal liability. Our decision in Gomez v. Perez, 409 U. S. 535 (1973), announced after oral argument in this case, has important implications for the Texas law governing a man’s civil liability for the support of-children he has fathered illegitimately. Although appellant’s challenge to the civil statute, as the Court points out, is not procedurally before us, ante, at 615 n. 1, her brief makes it clear that her basic objection to the Texas system concerns the absence of a duty of paternal support for illegitimate children. The history of the case suggests that appellant sought to utilize the criminal statute as a tool to compel support payments for her child. The decision in Gomez may remove the need for appellant to rely on the criminal law if she continues her quest for paternal contribution.

The standing issue now decided by the Court is, in my opinion, a difficult one with constitutional overtones. I see no reason to decide that question in the absence of a live, ongoing controversy. See Rice v. Sioux City Memorial Park Cemetery, 349 U. S. 70 (1955). Gomez now has beclouded the state precedents relied upon by both parties in the District Court. Thus “intervening circumstances may well have altered the views of the participants,” and the necessity for resolving the particular dispute may no longer be present. Protective Committee v. Anderson, 390 U. S. 414, 453-454 (1968). Under these circumstances, I would remand the case to the District Court for clarification of the status of the litigation.

       The District Court also considered an attack on Art. 4.02 of the Texas Family Code, which imposes civil liability upon “spouses” for the support of their minor children. Petitioner argued that the statute violated equal protection because it imposed no civil liability on the parents of illegitimate children. However, the three-judge court held that the challenge to this statute was not properly before it since appellant did not seek an injunction running against any state official as to it. See 28 U. S. C. § 2281. The Court, therefore, remanded this portion of the case to a single district judge. 335 F. Supp. 804, 807. The District Court’s disposition of petitioner’s Art. 4.02 claim is not presently before us. But see Gomez v. Perez, 409 U. S. 535 (1973).

       Appellant attached to her complaint an affidavit, signed by an assistant district attorney, stating that the State was unable to institute prosecution “due to caselaw construing Art. 602 of the Penal Code to be inapplicable to fathers of illegitimate children.”

       It is, of course, true that “Congress may not confer jurisdiction on Art. Ill federal courts to render advisory opinions,” Sierra Club v. Morton, 405 U. S. 727, 732 n. 3 (1972). But Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e. g., Traficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 212 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968).

       One of the leading commentators on standing has written, “Even though the past law of standing is so cluttered and confused that almost every proposition has some exception, the federal courts have consistently adhered to one major proposition without exception: One who has no interest of his own at stake always lacks standing.” K. Davis, Administrative Law Text 428-429 (3d ed. 1972).

       We noted last Term that “[t]he requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process.” Sierra Club v. Morton, 405 U. S., at 740. That observation is fully applicable here. As the District Court stated, “the proper party to challenge the constitutionality of Article 602 would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children.” 335 F. Supp., at 806.

       Since we dispose of this case on the basis of lack of standing, we intimate no view as to the merits of appellant’s claim. But cf. Gomez v. Perez, 409 U. S. 535 (1973).