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

text:
    ILLINOIS v. SOMERVILLE
    No. 71-692.
    Argued November 13, 1972
    Decided February 27, 1973
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Powell, JJ., joined. White, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 471. Marshall, J., filed a dissenting opinion, post, p. 477.

      E. James Oildea, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the brief were William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General.

      Ronald P. Alwin argued the cause for respondent. With him on the brief was Martin S. Gerber.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

We must here decide whether declaration of a mistrial over the defendant’s objection, because the trial court concluded that the indictment was insufficient to charge a crime, necessarily prevents a State from subsequently trying the defendant under a valid indictment. We hold that the mistrial met the “manifest necessity” requirement of our cases, since the trial court could reasonably have concluded that the “ends of public justice” would be defeated by having allowed the trial to continue. Therefore, the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), did not bar retrial under a valid indictment.

I

On March 19, 1964, respondent was indicted by an Illinois grand jury for the crime of theft. The case was called for trial and a jury impaneled and sworn on November 1, 1965. The following day, before any evidence had been presented, the prosecuting attorney realized that the indictment was fatally deficient under Illinois law because it did not allege that respondent intended to permanently deprive the owner of his property. Under the applicable Illinois criminal statute, such intent is a necessary element of the crime of theft, and failure to allege intent renders the indictment insufficient to charge a crime. But under the Illinois Constitution at that time, an indictment was the sole means by which a criminal proceeding such as this might be commenced against a defendant. Illinois further provides that only formal defects, of which this was not one, may be cured by amendment. The combined operation of these rules of Illinois procedure and substantive law meant that the defect in the indictment was “jurisdictional”; it could not be waived by the defendant’s failure to object, and could be asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction.

Faced with this situation, the Illinois trial court concluded that further proceedings under this defective indictment would be useless and granted the State’s motion for a mistrial. On November 3, the grand jury handed down a second indictment alleging the requisite intent. Respondent was arraigned two weeks after the first trial was aborted, raised a claim of double jeopardy which was overruled, and the second trial commenced shortly thereafter. The jury returned a verdict of guilty, sentence was imposed, and the Illinois courts upheld the conviction. Respondent then sought federal habeas corpus, alleging that the conviction constituted double jeopardy contrary to the prohibition of the Fifth and Fourteenth Amendments. The Seventh Circuit affirmed the denial of habeas corpus prior to our decision in United States v. Jorn, 400 U. S. 470 (1971). The respondent’s petition for certiorari was granted, and the case remanded for reconsideration in light of Jorn and Downum v. United States, 372 U. S. 734 (1963). On remand, the Seventh Circuit held that respondent’s petition for habeas corpus should have been granted because, although he had not been tried and acquitted as in United States v. Ball, 163 U. S. 662 (1896), and Benton v. Maryland,, 395 U. S. 784 (1969), jeopardy had attached when the jury was impaneled and sworn, and a declaration of mistrial over respondent’s objection precluded a retrial under a valid indictment. 447 F. 2d 733 (1971). For the reasons stated below, we reverse that judgment.

II

The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection is United States v. Perez, 9 Wheat. 579 (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant’s objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id., at 580.

This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U. S. 684 (1949), the Court, in reaffirming this flexible standard, wrote:

“We are asked to adopt the Cornero [v. United States, 48 F. 2d 69,] rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account’ and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest.” Id., at 691.

Similarly, in Gori v. United States, 367 U. S. 364 (1961), the Court again underscored the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial.

“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” Id., at 368.

In reviewing the propriety of the trial judge’s exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by “manifest necessity” or the “ends of public justice.” The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the “ends of public justice,” United States v. Perez, supra, at 580, or, more precisely, “the public’s interest in fair trials designed to end in just judgments,” Wade v. Hunter, supra, at 689, has not been disregarded by this Court.

In United States v. Perez, supra, and Logan v. United States, 144 U. S. 263 (1892), this Court held that “manifest necessity” justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial. Cf. Keerl v. Montana, 213 U. S. 135 (1909); Dreyer v. Illinois, 187 U. S. 71 (1902). In Simmons v. United States, 142 U. S. 148 (1891), a trial judge dismissed the jury, over defendant’s objection, because one of the jurors had been acquainted with the defendant, and, therefore, was probably prejudiced against the Government; this Court held that the trial judge properly exercised his power “to prevent the defeat of the ends of public justice.” Id., at 154. In Thompson v. United States, 155 U. S. 271 (1894), a mistrial was declared after the trial judge learned that one of the jurors was disqualified, he having been a member of the grand jury that indicted the defendant. Similarly, in Lovato v. New Mexico, 242 U. S. 199 (1916), the defendant demurred to the indictment, his demurrer was overruled, and a jury sworn. The district attorney, realizing that the defendant had not pleaded to the indictment after the demurrer had been overruled, moved for the discharge of the jury and arraignment of the defendant for pleading; the jury was discharged, the defendant pleaded not guilty, the same jury was again impaneled, and a verdict of guilty rendered. In both of those cases this Court held that the Double Jeopardy Clause did not bar reprosecution.

While virtually all of the cases turn on the particular facts and thus escape meaningful categorization, see Gori v. United States, supra; Wade v. Hunter, supra, it is possible to distill from them a general approach, premised on the “public justice” policy enunciated in United States v. Perez, to situations such as that presented by this case. A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve “the ends of public justice” to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. This was substantially the situation in both Thompson v. United States, supra, and Lovato v. New Mexico, supra. While the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question, cf. Downum v. United States, supra, such was not the situation in the above cases or in the instant case.

In Downum v. United States, the defendant was charged with six counts of mail theft, and forging and uttering stolen checks. A jury was selected and sworn in the morning, and instructed to return that afternoon. When the jury returned, the Government moved for the discharge of the jury on the ground that a key prosecution witness, for two of the six counts against defendant, was not present. The prosecution knew, prior to the selection and swearing of the jury, that this witness could not be found and had not been served with a subpoena. The trial judge discharged the jury over the defendant’s motions to dismiss two counts for failure to prosecute and to continue the other four. This Court, in reversing the convictions on the ground of double jeopardy, emphasized that “[e]ach case must turn on its facts,” 372 U. S., at 737, and held that the second prosecution constituted double jeopardy, because the absence of the witness and the reason therefor did not there justify, in terms of “manifest necessity,” the declaration of a mistrial.

In United States v. Jorn, supra, the Government called a taxpayer witness in a prosecution for willfully assisting in the preparation of fraudulent income tax returns. Prior to his testimony, defense counsel suggested he be warned of his constitutional right against compulsory self-incrimination. The trial judge warned him of his rights, and the witness stated that he was willing to testify and that the Internal Revenue Service agent who first contacted him warned him of his rights. The trial judge, however, did not believe the witness’ declaration that the IRS had so warned him, and refused to allow him to testify until after he had consulted with an attorney. After learning from the Government that the remaining four witnesses were “similarly situated,” and after surmising that they, too, had not been properly informed of their rights, the trial judge declared a mistrial to give the witnesses the opportunity to consult with attorneys. In sustaining a plea in bar of double jeopardy to an attempted second trial of the defendant, the plurality opinion of the Court, emphasizing the importance to the defendant of proceeding before the first jury sworn, concluded:

“It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v. Perez, 9 Wheat., at 580. Therefore, we must conclude that in the circumstances of this case, appellee’s reprosecution would violate the double jeopardy provision of the Fifth Amendment.” 400 U. S., at 487.

III

Respondent advances two arguments to support the conclusion that the Double Jeopardy Clause precluded the second trial in the instant case. The first is that since United States v. Ball, 163 U. S. 662 (1896), held that jeopardy obtained even though the indictment upon which the defendant was first acquitted had been defective, and since Downurn v. United States, supra, held that jeopardy “attaches” when a jury has been selected and sworn, the Double Jeopardy Clause precluded the State from instituting the second proceeding that resulted in respondent’s conviction. Alternatively, respondent argues that our decision in United States v. Jorn, supra, which respondent interprets as narrowly limiting the circumstances in which a mistrial is manifestly necessary, requires affirmance. Emphasizing the “ ‘valued right to have his trial completed by a particular tribunal,’ ” United States v. Jorn, supra, at 484, quoting Wade v. Hunter, 336 U. S., at 689, respondent contends that the circumstances did not justify depriving him of that right.

Respondent’s first contention is precisely the type of rigid, mechanical rule which the Court had eschewed since the seminal decision in Perez. The major premise of the syllogism — that trial on a defective indictment precludes retrial — is not applicable to the instant case because it overlooks a crucial element of the Court’s reasoning in United States v. Ball, supra. There, three men were indicted and tried for murder; two were convicted by a jury and one acquitted. This Court reversed the convictions on the ground that the indictment was fatally deficient in failing to allege that the victim died within a year and a day of the assault. Ball v. United States, 140 U. S. 118 (1891). A proper indictment was returned and the Government retried all three of the original defendants; that trial resulted in the conviction of all. This Court reversed the conviction of the one defendant who originally had been acquitted, sustaining his plea of double jeopardy. But the Court was obviously and properly influenced by the fact that the first trial had proceeded to verdict. This focus of the Court is reflected in the opinion:

“[W]e are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.
“. . . [T]he accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. . . .” 163 U. S., at 669 (emphasis added).

In Downum, the Court held, as respondent argues, that jeopardy “attached” when the first jury was selected and sworn. But in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. That, indeed, was precisely the rationale of Perez and subsequent cases. Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by “manifest necessity” or the “ends of public justice.”

We believe that in light of the State’s established rules of criminal procedure, the trial judge’s declaration of a mistrial was not an abuse of discretion. Since this Court’s decision in Benton v. Maryland, supra, federal courts will be confronted with such claims that arise in large measure from the often diverse procedural rules existing in the 50 States. Federal courts should not be quick to conclude that simply because a state procedure does not conform to the corresponding federal statute or rule, it does not serve a legitimate state policy. Last Term, recognizing this fact, we dismissed a writ of certiorari as improvidently granted in a case involving a claim of double jeopardy stemming from the dismissal of an indictment under the “rules of criminal pleading peculiar to” an individual State followed by a retrial under a proper indictment. Duncan v. Tennessee, 405 U. S. 127 (1972).

In the instant case, the trial judge terminated the proceeding because a defect was found to exist in the indictment that was, as a matter of Illinois law, not curable by amendment. The Illinois courts have held that even after a judgment of conviction has become final, the defendant may be released on habeas corpus, because the defect in the indictment deprives the trial court of “jurisdiction.” The rule prohibiting the amendment of all but formal defects in indictments is designed to implement the State’s policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury. The trial judge was faced with a situation similar to those in Simmons, Lovato, and Thompson, in which a procedural defect might or would preclude the public from either obtaining an impartial verdict or keeping a verdict of conviction if its evidence persuaded the jury. If a mistrial were constitutionally unavailable in situations such as this, the State’s policy could only be implemented by conducting a second trial after verdict and reversal on appeal, thus wasting time, energy, and money for all concerned. Here, the trial judge’s action was a rational determination designed to implement a legitimate state policy, with no suggestion that the implementation of that policy in this manner could be manipulated so as to prejudice the defendant. This situation is thus unlike Downum, where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case. Here, the delay was minimal, and' the mistrial was, under Illinois law, the only way in which a defect in the indictment could be corrected. Given the established standard of discretion set forth in. Perez, Gori, and Hunter, we cannot say that the declaration of a mistrial was not required by “manifest necessity” or the “ends of public justice.”

Our decision in Jorn, relied upon by the court below and respondent, does not support the opposite conclusion. While it is possible to excise various portions of the plurality opinion to support the result reached below, divorcing the language from the facts of the case serves only to distort its holdings. That opinion dealt with action by a trial judge that can fairly be described as erratic. The Court held that the lack of apparent harm to the defendant from the declaration of a mistrial did not itself justify the mistrial, and concluded that there was no “manifest necessity” for the mistrial, as opposed to less drastic alternatives. The Court emphasized that the absence of any manifest need for the mistrial had deprived the defendant of his right to proceed before the first jury, but it did not hold that that right may never be forced to yield, as in this case, to “the public's interest in fair trials designed to end in just judgments.” The Court’s opinion in Jorn is replete with approving references to Wade v. Hunter, supra, which latter case stated:

“The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of the jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U. S., at 688-689 (footnote omitted; emphasis added).

The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. United States v. Jorn, supra. Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration. Ibid. But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra.

Reversed.

Mr. Justice White,

with whom Mr. Justice Douglas and Mr. Justice Brennan join, dissenting.

For the purposes of the Double Jeopardy Clause, jeopardy attaches when a criminal trial commences before judge or jury, United States v. Jorn, 400 U. S. 470, 479-480 (1971); Green v. United States, 355 U. S. 184, 188 (1957); Wade v. Hunter, 336 U. S. 684, 688 (1949), and this point has arrived when a jury has been selected and sworn, even though no evidence has been taken. Downum v. United States, 372 U. S. 734 (1963). Clearly, Somerville was placed in jeopardy at his first trial despite the fact that the indictment against him was defective under Illinois law. Benton v. Maryland, 395 U. S. 784, 796-797 (1969); United States v. Ball, 163 U. S. 662 (1896). The question remains, however, whether the facts of this case present one of those circumstances where a trial, once begun, may be aborted over the defendant’s objection and the defendant retried without twice being placed in jeopardy contrary to the Constitution.

The Court has frequently addressed itself to the general problem of mistrials and the Double Jeopardy Clause, most recently in United States v. Jorn, supra. We have abjured mechanical, per se rules and have preferred to rely upon the approach first announced in United States v. Perez, 9 Wheat. 579 (1824). Under the Perez analysis, a trial court has authority to discharge a jury prior to verdict, and the Double Jeopardy Clause will not prevent retrial, only if the trial court takes “all the circumstances into consideration” and in its “sound discretion” determines that “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Id., at 580. See also United States v. Jorn, supra, at 480-481 (opinion of Harlan, J.); id., at 492 (Stewart, J., dissenting); Gori v. United States, 367 U. S. 364, 367-369 (1961); id., at 370-373 (Douglas, J., dissenting); Downum v. United States, supra, at 735-736, id., at 740 (Clark, J., dissenting). Despite the generality of the Perez standard, some guidelines have evolved from past cases, as this Court has reviewed the exercise of trial court discretion in a variety of circumstances.

United States v. Jorn, supra, and Downum v. United States, supra, for example, make it abundantly clear that trial courts should have constantly in mind the purposes of the Double Jeopardy Clause to protect the defendant from continued exposure to embarrassment, anxiety, expense, and restrictions on his liberty, as well as to preserve his “ 'valued right to have his trial completed by a particular tribunal.’ ” United States v. Jorn, supra, at 484, quoting from Wade v. Hunter, 336 U. S., at 689.

“[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, supra, at 486.

It was in light of this interest that the Court in Downum reversed a conviction on double jeopardy grounds where a mistrial was declared to permit further efforts to secure the attendance of a key prosecution witness who should have been, but was not, subpoenaed. Although no prose-cutorial misconduct other than mere oversight and mistake was claimed or proved, the policies of the Double Jeopardy Clause, and the interest of the defendant in taking his case to the jury that he had just accepted, were sufficient to raise the double jeopardy barrier to a second trial.

Similarly, in Jorn, a trial was terminated when the trial judge, sua sponte and mistakenly, declared a mistrial, apparently to protect nonparty witnesses from the possibility of self-incrimination. There was no showing of intent by the prosecutor or the judge, to harass the defendant or to enhance chances of conviction at a second trial; the defendant was given a complete preview of the Government’s case, and no specific prejudice to the defense at a second trial was shown. Noting that the courts “must bear in mind the potential risks of abuse by the defendant of society’s unwillingness to unnecessarily subject him to repeated prosecutions,” 400 U. S., at 486, this Court held that the defendant’s interest in submitting his case to the initial jury was itself sufficient to invoke the Double Jeopardy Clause and, as in Downum, to override the Government’s concern with enforcing the criminal laws by having another chance to try the defendant for the crime with which he was charged. In neither case was there “manifest necessity” for a mistrial and a double trial of the defendant.

Very similar considerations govern this case. Somerville asserts a right to but one trial and to a verdict by the initial jury. A mistrial was directed at the instance of the State, over Somerville’s objection, and was occasioned by official error in drafting the indictment— error unaccompanied by bad faith, overreaching, or specific prejudice to the defense at a later trial. The State may no more try the defendant a second time in these circumstances than could the United States in Downum and Jorn. Although the exact extent of the emotional and physical harm suffered by Somerville during the period between his first and second trial is open to debate, it cannot be gainsaid that Somerville lost “his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” United States v. Jorn, 400 U. S., at 484. Downum and Jorn, over serious dissent, rejected the view that the Double Jeopardy Clause protects only against those mistrials that lend themselves to prosecutorial manipulation and underwrote the independent right of a defendant in a criminal case to have the verdict of the initial jury. Both cases made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant’s right to a verdict by his first jury is not to be overridden except for “manifest necessity.” There was not, in this case any more than in Downum and Jorn, “manifest necessity” for the loss of that right.

The majority recognizes that “the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one,” but finds that interest outweighed by the State’s desire to avoid “conducting a second trial after verdict and reversal on appeal [on the basis of a defective indictment], thus wasting time, energy, and money for all concerned.” The majority finds paramount the interest of the State in “keeping a verdict of conviction if its evidence persuaded the jury.” Such analysis, however, completely ignores the possibility that the defendant might be acquitted by the initial jury. It is, after’ all, that possibility — the chance to “end the dispute then and there with an acquittal,” United States v. Jorn, supra, at 484 — that makes the right to a trial before a particular tribunal of importance to a defendant. In addition, the majority's balancing gives too little weight to the fundamental place of the Double Jeopardy Clause, and the purposes which it seeks to serve, in “the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.” Id., at 479.

Apparently the majority finds “manifest necessity” for a mistrial and the retrial of the defendant in “the State's policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury” and the implementation of that policy in the absence from Illinois procedural rules of any procedure for the amendment of indictments. Conceding the reasonableness of such a policy, it must be remembered that the inability to amend an indictment does not come into play, and a mistrial is not necessitated, unless an error on the part of the State in the framing of the indictment is committed. Only when the indictment is defective — only when the State has failed to properly execute its responsibility to frame a proper indictment — does the State's procedural framework necessitate a mistrial.

Although recognizing that “a criminal trial is, even in the best of circumstances, a complicated affair to manage,” ibid., the Court has not previously thought prosecutorial error sufficient excuse for not applying the Double Jeopardy Clause. In Jorn, for instance, the Court declared that “unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process,” id., at 485-486, and cautioned, “The trial judge must recognize that lack of preparedness by the Government. . . directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee.” Id., at 486. See also id., at 487-488 (Burger, C. J., concurring); Downum v. United States, 372 U. S., at 737. Here, the prosecutorial error, not the independent operation of a state procedural rule, necessitated the mistrial. Judged by the standards of Downum and lorn I cannot find, in the words of the majority, an “important countervailing interest of proper judicial administration” in this case; I cannot find “manifest necessity” for a mistrial to compensate for prosecu-torial mistake.

Finally, the majority notes that “the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question.” See United States v. Jorn, 400 U. S., at 479; Downum v. United States, supra; Green v. United States, 355 U. S., at 187-188. Surely there is no evidence of bad faith or overreaching on this record. However, the words of the Court in Ball seem particularly appropriate.

“This case, in short, presents the novel and unheard of spectacle, of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. ... If this practice be tolerated, when are trials of the accused to end? If a conviction take place, whether an indictment be good, or otherwise, it is ten to one that judgment passes; for, if he read the bill, it is not probable he will have penetration enough to discern its defects. His counsel, if any be assigned to him, will be content with hearing the substance of the charge without looking farther; and the court will hardly, of its own accord, think it a duty to examine the indictment to detect errors in it. Many hundreds, perhaps, are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits.” 163 U. S., at 667-668.

I respectfully dissent.

Mr. Justice Marshall,

dissenting.

The opinion of the Court explicitly disclaims the suggestion that it overrules the recent cases of United States v. Jorn, 400 U. S. 470 (1971), and Downum v. United States, 372 U. S. 734 (1963). Ante, at 469. But the Court substantially eviscerates the rationale of those cases. Jorn and Downum appeared to give judges some guidance in determining what constituted a “manifest necessity” for declaring a mistrial over a defendant’s objection. Today the Court seems to revert to a totally unstructured analysis of such cases. I believe that one of the strengths of the articulation of legal rules in a series of cases is that successive cases present in a clearer focus considerations only vaguely seen earlier. Cases help delineate the factors to be considered and suggest how they ought to affect the result in particular situations. That is what Jorn and Downum did. The Court, it seems to me, today abandons the effort in those cases to suggest the importance of particular factors, and adopts a general “balancing” test which, even on its own terms, the Court improperly applies to this case.

The majority purports to balance the manifest necessity for declaring a mistrial, ante, at 463, the public interest “in seeing that a criminal prosecution proceed to verdict,” ibid., and the interest in assuring impartial verdicts, ante, at 464. The second interest is obviously present in every case, and placing it in the balance cannot alter the result of the analysis of different cases. It is, at most, a constant whose importance a judge must consider when weighing other factors on which the availability of the double jeopardy defense depends.

At the same time, the balance that the majority strikes essentially ignores the importance of a factor which was determinative in Jorn and Downum: the accused’s interest in his “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U. S. 684, 689 (1949), quoted in United States v. Jorn, 400 U. S., at 484. This is not a factor which is excised from isolated passages of Jorn, as the majority would have it, ante, at 469; it is the core of that case, as even the most cursory reading will disclose. See, e. g., 400 U. S., at 479, 484-486.

By mischaracterizing Jorn and Downum, the Court finds it possible to reach today’s result. A fair reading of those cases shows how the balance should properly be struck here. The first element to be considered is the necessity for declaring a mistrial. That I take to mean consideration of the alternatives available to the judge confronted with a situation in the midst of trial that seems to require correction. In Downum, for example, a key prosecution witness was not available when the case was called for trial, because of the prosecutor’s negligence. Because the witness was essential to presentation of only two of the six counts concerning Downum, there was no necessity to declare a mistrial as to all six. Trial could have proceeded on the four counts for which the prosecution was ready. Downum v. United States, 372 U. S., at 737. Similarly, in Jorn, the District Judge precipitately aborted the trial in order to protect the rights of prospective witnesses. Again, the alternative of interrupting the trial briefly so that the witnesses might consult with attorneys was available but not invoked. United States v. Jorn, 400 U. S., at 487.

A superficial examination of this case might suggest that there were no alternatives except to proceed where “reversal on appeal [would be] a certainty” ante, at 464. Respondent had been indicted for “knowingly obtain [ing] unauthorized control over stolen property, to wit: thirteen hundred dollars in United States Currency, the property of Zayre of Bridgeview, Inc., a corporation, knowing the same to have been stolen by another in violation of Chapter 38, Section 16-1 (d) of the Illinois Revised Statutes.” Petition for Writ of Certiorari 3. The statute named in the indictment requires that the defendant have “[i]ntend[ed] to deprive the owner permanently of the use or benefit of the property.” Ill. Rev. Stat., c. 38, § 16-1 (d)(1) (1963).

The majority treats it as unquestionably clear that the failure to allege that intent in the indictment made the indictment fatally defective. And indeed, since the time of the trial of this case, Illinois courts have so held. See, e. g., People v. Matthews, 122 Ill. App. 2d 264, 258 N. E. 2d 378 (1970); People v. Hayn, 116 Ill. App. 2d 241, 253 N. E. 2d 575 (1969). But the answer was not so clear when the trial judge made his decision. The Illinois Code of Criminal Procedure had just recently been amended to require that an indictment name the offense and the statutory provision alleged to have been violated, and that it set forth the nature and elements of the offense charged. Ill. Rev. Stat., c. 38, § 111-3 (a) (1963). The indictment here was sufficiently detailed to meet the federal requirement that the indictment “contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet,’ ” Hagner v. United States, 285 U. S. 427, 431 (1932); see also Russell v. United States, 369 U. S. 749 (1962).

Had the Illinois courts been made aware of the substantial constitutional questions raised by rigid application of an archaic mode of reading indictments, they might well have refused to hold that the defect in the indictment here was jurisdictional and nonwaivable. Conscientious state trial judges certainly must attempt to anticipate the course of interpretation of state law. But they must also contribute to that course by pointing out the constitutional implications of alternative interpretations. By doing so, they would themselves help shape the interpretation of state law. Here, for example, had the trial judge refused to declare a mistrial because of his constitutional misgivings about the implications of that course, he might have prevented what Chief Justice Underwood has called a “reversion to an overly technical, highly unrealistic and completely undesirable type of formalism in pleading which . . . serves no useful purpose,” in interpreting the Code of Criminal Procedure. People ex rel. Ledford v. Brantley, 46 Ill. 2d 419, 423, 263 N. E. 2d 27, 29 (1970) (Underwood, C. J., dissenting). A trial judge in 1965 might have forestalled that unhappy development. Thus, he could have proceeded to try the case on the first indictment, risking reversal as any trial judge does when making rulings of law, but with no guarantee of reversal. In proceeding with the trial, he would have fully protected the defendant’s interest in having his trial completed by the jury already chosen.

If the only alternative to declaring a mistrial did require the trial judge to ignore the tenor of previous state decisional law, though, perhaps declaring a mistrial would have been a manifest necessity. But there obviously was another alternative. The trial j udge could have continued the trial. The majority suggests that this would have been a useless charade. But to a defendant, forcing the Government to proceed with its proof would almost certainly not be useless. The Government might not persuade the jury of the defendant’s guilt. The majority concedes that the Double Jeopardy Clause would then bar a retrial. Ante, at 467; United States v. Ball, 163 U. S. 662 (1896). To assume that continuing the trial would be useless is to assume that conviction is inevitable. I would not structure the analysis of problems under the Double Jeopardy Clause on an assumption that appears to be inconsistent with the presumption of innocence.

Once it is shown that alternatives to the declaration of a mistrial existed, as they did here, we must consider whether the reasons which led to the declaration were sufficient, in light of those alternatives, to overcome the defendant’s interest in trying the case to the jury. Here Jorn and Downum run directly counter to the holding today.

I would not characterize the District Judge’s behavior in Jorn as "erratic,” as the Court does, ante, at 469. His desire to protect the rights of prospective witnesses, who might have unknowingly implicated them in criminal activities if they testified, was hardly irrational. It, too, was “a legitimate state policy.” Ibid. The defect in Jorn was the District Judge’s failure to consider alternative courses of action, not the irrationality of the policy he sought to promote.

But even if I agreed with the majority’s description of Jorn, that would not end the inquiry. I would turn to a consideration of the importance of the state policy that seemed to require declaring a mistrial, when weighed against the defendant’s interest in concluding the trial with the jury already chosen.

Here again the majority mischaracterizes the state policy at stake here. What is involved is not, as the majority says, “the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury.” Ante, at 468. Rather, the interest is in making the defect in the indictment here jurisdictional and not waivable by a defendant. Ordinarily, a defect in jurisdiction means that one institution has invaded the proper province of another. Such defects are not waivable because the State has an interest in preserving the allocation of competence between those institutions. Here, for example, the petit jury would invade the province of the grand jury if it returned a verdict of guilty on an improper indictment. However, allocation of jurisdiction is most important when one continuing body acts in the area of competence reserved to another continuing body. While it may be desirable to keep a single petit jury from invading the province of a single grand jury, surely that interest is not so substantial as to outweigh the “defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). Cf. Henry v. Mississippi, 379 U. S. 443 (1965).

Downum v. United States, 372 U. S. 734 (1963), is an even harder case for the majority, which succeeds in distinguishing it only by misrepresenting the facts of the case. The majority treats Downum as a case involving a procedure “that would lend itself to prosecutorial manipulation.” Ante, at 464. However, the facts in Downum, set out at 372 U. S., at 740-742 (Clark, J., dissenting), clearly show that the prosecutor’s failure to have a crucial witness present was a negligent oversight. Except in the most attenuated sense that it may induce a prosecutor to fail to take steps to prevent such oversights, I cannot understand how negligence lends itself to manipulation. And even if I could understand that, I cannot understand how negligence in failing to draw an adequate indictment is different from negligence in failing to assure the presence of a crucial witness.

I believe that Downum and Jorn are controlling. As in those cases, the trial judge here did not pursue an available alternative, and the reason which led him to declare a mistrial was prosecutorial negligence, a reason that this Court found insufficient in Downum. Jorn and Downum were in the tradition of elaboration of rules which give increasing guidance as case after case is decided. I see no reason to abandon that tradition in this case and to adopt a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases. I therefore respectfully dissent.

         Ill. Rev. Stat., c. 38, §16-1 (d)(1) (1963).

       See Constitution of Illinois, Art. II, § 8 (1967). When the State Constitution was amended in 1970, this provision was retained as the first paragraph of Art. I, § 7.

         Downum may perhaps be read as stating a prophylactic rule. While the evil to be avoided is the intentional manipulation by the prosecutor of the availability of his witnesses, it may be extremely difficult to secure a determination of intentional manipulation. Proof will inevitably be hard to come by. And the relations between judges and prosecutors in many places may make judges reluctant to find intentional manipulation. Thus, a general rule that the absence of crucial prosecution witnesses is not a reason for declaring a mistrial is necessary. Although the abuses of misdrawing indictments are less apparent than those of manipulating the availability of witnesses, I believe that, even if Downum is based on the foregoing analysis — an analysis which appears nowhere in the opinion— a similar prophylactic rule is desirable here.
      For example, in this case the State gained two weeks to strengthen a weak case. This is far longer than the two-day delay in Downum, and, to the extent that the time was used to strengthen the case, the prosecutor could have capitalized on his previous negligence in drawing the indictment.

       So far I have read Jorn and Downum as restrictively as they can be fairly read. But those cases, I believe, should be read more expansively. They show to me that “manifest necessity” cannot be created by errors on the part of the prosecutor or judge; it must arise from some source outside their control. Wade v. Hunter, 336 U. S. 684 (1949), was clearly such a ease. So were the cases that the majority says involved situations where “an impartial verdict cannot be reached,” ante, at 464. In those cases, a juror or the jury as a whole, uncontrolled by the judge or prosecutor, prevented the trial from proceeding to a verdict. United States v. Perez, 9 Wheat. 579 (1824); Simmons v. United States, 142 U. S. 148 (1891); Thompson v. United States, 155 U. S. 271 (1894).


source: Caselaw Access Project

author: Me. Justice Brennan Mr. Justice Blackmun, Mr. Justice Rehnquist,

license: Public Domain

text:
    BRADEN v. 30TH JUDICIAL CIRCUIT COURT OF KENTUCKY
    No. 71-6516.
    Argued December 5, 1972
    Decided February 28, 1973

      BreNNAN, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. BlackmUN, J., filed an opinion concurring in the result, post, p. 501. RehNQuist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 502.

      David R. Hood argued the cause and filed a brief for petitioner.

      John M. Famularo, Assistant Attorney General of Kentucky, argued the cause for respondent pro hac vice. With him on the brief was Ed W. Hancock, Attorney General.

        Melvin L. Wulf, Sanford Jay Rosen, and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

   Me. Justice Brennan

delivered the opinion of the Court.

Petitioner is presently serving a sentence in an Alabama prison. He applied to the District Court for the Western District of Kentucky for a writ of federal habeas corpus, alleging denial of his constitutional right to a speedy trial, Smith v. Hooey, 393 U. S. 374 (1969), and praying that an order issue directing respondent to afford him an immediate trial on a then three-year-old Kentucky indictment. We are to consider whether, as petitioner was not physically present within the territorial limits of the District Court for the Western District of Kentucky, the provision of 28 U. S. C. § 2241 (a) that “[w]rits of habeas corpus may be granted by the .. . district courts . . . within their respective jurisdictions” (emphasis supplied), precluded the District Court from entertaining petitioner's application. The District Court held that the section did not bar its determination of the application. The court held further that petitioner had been denied a speedy trial and ordered respondent either to secure his presence in Kentucky for trial within 60 days or to dismiss the indictment. The Court of Appeals for the Sixth Circuit reversed on the ground that “the habeas corpus jurisdiction conferred on the federal courts by 28 U. S. C. § 2241 (a) is ‘limited to petitions filed by persons physically present within the territorial limits of the District Court.’ ” 454 F. 2d 145, 146 (1972). We granted certiorari. 407 U. S. 909 (1972). We reverse.

I

On July 31, 1967, the grand jury of the Jefferson County Circuit Court (30th Judicial Circuit of Kentucky) indicted petitioner on one count of storehouse breaking and one count of safebreaking. At the time of the indictment, petitioner was in custody in California, and he was returned to Kentucky to stand trial on the indictment. But on November 13, 1967, he escaped from the custody of Kentucky officials and remained at large until his arrest in Alabama on February 24, 1968. Petitioner was convicted of certain unspecified felonies in the Alabama state courts, and was sentenced to the Alabama state prison, where he was confined when he filed this action.

The validity of petitioner’s conviction on the Alabama felonies is not at issue here, just as it was not at issue before the District Court for the Western District of Kentucky. Nor does petitioner challenge the “present effect being given the [Kentucky] detainer by the [Alabama] authorities . . . .” Nelson v. George, 399 U. S. 224, 225 (1970). He attacks, rather, the validity of the Kentucky indictment which underlies the detainer lodged against him by officials of that State.

In a pro se application for habeas corpus relief to the Federal District Court in the Western District of Kentucky, petitioner alleged that he had made repeated demands for a speedy trial on the Kentucky indictment, that he had been denied his right to a speedy trial, that further delay in trial would impair his ability to defend himself, and that the existence of the Kentucky indictment adversely affected his condition of confinement in Alabama by prejudicing his opportunity for parole. In response to an order to show cause, respondent argued that the District Court lacked jurisdiction because the petitioner was not confined within the district. Respondent added that “petitioner in the case at bar may challenge the legality of any of the adverse effects of any Kentucky detainer against him in Alabama by habeas corpus in the Alabama Federal District Court.” App. 6-7. The District Court held, citing Smith v. Hooey, 393 U. S. 374 (1969), that Kentucky must “attempt to effect the return of a prisoner from a foreign jurisdiction for trial on pending state charges when such prisoner so demands .... Since it is the State of Kentucky which must take action, it follows that jurisdiction rests in this district which has jurisdiction over the necessary state officials.” App. 9.

Under the constraint of its earlier decision, the Court of Appeals reversed but stated that it “reach [ed] this conclusion reluctantly” because of the possibility that the decision would “result in Braden’s inability to find a forum in which to assert his constitutional right to a speedy trial — a right which he is legally entitled to assert at this time under Peyton v. Rowe, 391 U. S. 54 (1968). This is a possibility because the rule in the Fifth Circuit, where [Braden] is incarcerated, appears to be that a district court in the state that has filed the detainer is the proper forum in which to file the petition. See May v. Georgia, 409 F. 2d 203 (5th Cir.1969). See also Rodgers v. Louisiana, 418 F. 2d 237 (5th Cir.1969). Braden thus may find himself ensnared in what has aptly been termed ‘Catch 2254’ — unable to vindicate his constitutional rights in either of the only two states that could possibly afford a remedy. See Tuttle, Catch 2254: Federal Jurisdiction and Interstate Detainers, 32 U. Pitt. L. Rev. 489, 502-03 (1971).” 454 F. 2d, at 146-147.

II

We granted certiorari to resolve a sharp conflict among the federal courts on the choice of forum where a prisoner attacks an interstate detainer on federal habeas corpus. Before turning to that question, we must make clear that petitioner is entitled to raise his speedy trial claim on federal habeas corpus at this time. First, he is currently “in custody” within the meaning of the federal habeas corpus statute, 28 U. S. C. §2241 (c)(3). Prior to our decision in Peyton v. Rowe, 391 U. S. 54 (1968), the “prematurity doctrine” of McNally v. Hill, 293 U. S. 131 (1934), would, of course, have barred his petition for relief. But our decision in Peyton v. Rowe discarded the prematurity doctrine, which had permitted a prisoner to attack on habeas corpus only his current confinement, and not confinement that would be imposed in the future, and opened the door to this action.

Second, petitioner has exhausted all available state remedies as a prelude to this action. It is true, of course, that he has not yet been tried on the Kentucky indictment, and he can assert a speedy trial defense when, and if, he is finally brought to trial. It is also true, as our Brother Rehnquist points out in dissent, that federal habeas corpus does not lie, absent “special circumstances,” to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. Ex parte Royall, 117 U. S. 241, 253 (1886). Petitioner does not, however, seek at this time to litigate a federal defense to a criminal charge, but only to demand enforcement of the Commonwealth’s affirmative constitutional obligation to bring him promptly to trial. Smith v. Hooey, 393 U. S. 374 (1969). He has made repeated demands for trial to the courts of Kentucky, offering those courts an opportunity to consider on the merits his constitutional claim of the present denial of a speedy trial. Under these circumstances it is clear that he has exhausted all available state court remedies for consideration of that constitutional claim, even though Kentucky has not yet brought him to trial. .

The exhaustion doctrine is a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a “swift and imperative remedy in all cases of illegal restraint or confinement.” Secretary of State for Home Affairs v. O’Brien, [1923] A. C. 603, 609 (H. L.). It cannot be used as a blunderbuss to shatter the attempt at litigation of constitutional claims without regard to the purposes that underlie the doctrine and that called it into existence. As applied in our earlier decisions, the doctrine

“preserves the role of the state courts in the application and enforcement of federal law. Early federal intervention in state criminal proceedings would tend to remove federal questions from the state courts, isolate those courts from constitutional issues, and thereby remove their understanding of and hospitality to federally protected interests. Second, [the doctrine] preserves orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings. It is important that petitioners reach state appellate courts, which can develop and correct errors of state and federal law and most effectively supervise and impose uniformity on trial courts.” Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1094 (1970).

See Darr v. Burford, 339 U. S. 200, 204-206 (1950), and the case which overruled it, Fay v. Noia, 372 U. S. 391, 417-420 (1963). See also Ex parte Royall, supra, at 251-252; Ex parte Hawk, 321 U. S. 114 (1944); cf. Younger v. Harris, 401 U. S. 37 (1971); Stefanelli v. Minard, 342 U. S. 117 (1951).

The fundamental interests underlying the exhaustion doctrine have been fully satisfied in petitioner's situation. He has already presented his federal constitutional claim of a present denial of a speedy trial to the courts of Kentucky. The state courts rejected the claim, apparently on the ground that since he had once escaped from custody the Commonwealth should not be obligated to incur the risk of another escape by returning him for trial. Petitioner exhausted all available state court opportunities to establish his position that the prior escape did not obviate the Commonwealth’s duty under Smith v. Hooey, supra. Moreover, petitioner made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes. He comes to federal court, not in an effort to forestall a state prosecution, but to enforce the Commonwealth’s obligation to provide him with a state court forum. He delayed his application for federal relief until the state courts had conclusively determined that his prosecution was temporarily moribund. Since petitioner began serving the second' of two 10-year Alabama sentences in March 1972, the revival of the prosecution may be delayed until as late as 1982. A federal habeas corpus action at this time and under these circumstances does not jeopardize any legitimate interest of federalism. Respondent apparently shares that view since it specifically concedes that petitioner has exhausted all available state remedies, Tr. of Oral Arg. 41.

In the case before us, the Court of Appeals held — not surprisingly, in view of the considerations discussed above — that even though petitioner had chosen the wrong forum, his speedy trial claim was one “which he is legally entitled to assert at this time under Peyton v. Rowe, 391 U. S. 54 (1968).” 454 F. 2d, at 146. And the District Court, which upheld on the merits petitioner's speedy trial claim, necessarily adopted that view. Indeed, the great majority of lower federal courts which have considered the question since Smith v. Hooey, supra, have reached this same, and indisputably correct, conclusion.

We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court. The contention in dissent that our decision converts federal habeas corpus into “a pretrial-motion forum for state prisoners,” wholly misapprehends today’s holding.

III

Accordingly, we turn to the determination of the forum in which the petition for habeas corpus should be brought. In terms of traditional venue considerations, the District Court for the Western District of Kentucky is almost surely the most desirable forum for the adjudication of the claim. It is in Kentucky, where all of the material events took place, that the records and witnesses pertinent to petitioner’s claim are likely to be found. And that forum is presumably no less convenient for the respondent and the Commonwealth of Kentucky, than for the petitioner. The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined. Indeed, respondent makes clear that “on balance, it would appear simpler and less expensive for the State of Kentucky to litigate such questions [as those involved in this case] in one of its own Federal judicial districts.” Brief for Respondent 6.

But respondent insists that however the balance of convenience might be struck with reference to the question of venue, the choice of forum is rigidly and jurisdic-tionally controlled by the provision of § 2241 (a) that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” 28 U. S. C. § 2241 (a) (emphasis supplied). Relying on our decision in Ahrens v. Clark, 335 U. S. 188 (1948), respondent contends — and the Court of Appeals held — that the italicized words limit a District Court’s habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. Since that interpretation is not compelled either by the language of the statute or by the decision in Ahrens, and since it is fundamentally at odds with the purposes of the statutory scheme, we cannot agree.

The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. Wales v. Whitney, 114 U. S. 564, 574 (1885). In the classic statement:

“The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent.” In the Matter of Jackson, 15 Mich. 417, 439-440 (1867), quoted with approval in Ex parte Endo, 323 U. S. 283, 306 (1944).

See also Ahrens v. Clark, 335 U. S., at 196-197 (Rutledge, J., dissenting).

Read literally, the language of § 2241 (a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.

Nevertheless, there is language in our opinion in Ahrens v. Clark, supra, indicating that the prisoner’s presence within the territorial confines of the district is an invariable prerequisite to the exercise of the District Court’s habeas corpus jurisdiction. In Ahrens, 120 German nationals confined at Ellis Island, New York, pending deportation sought habeas corpus on the principal ground that the removal orders exceeded the President’s statutory authority under the Alien Enemy Act of 1798. They filed their petitions in the District Court for the District of Columbia, naming as respondent the Attorney General of the United States. Construing the statutory predecessor to § 2241 (a), we held that the phrase, “within their respective jurisdictions,” precluded the District Court for the District of Columbia from inquiring into the validity of the prisoners’^ detention at Ellis Island, and we therefore affirmed the dismissal of the petitions on jurisdictional grounds.

Our decision in Ahrens rested on the view that Congress’ paramount concern was the risk and expense attendant to the “production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ. The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose.” 335 U. S., at 191. And we found support for that assumption in the legislative history of the Act. During the course of Senate debate on the habeas corpus statute of 1867, the bill was criticized on the ground that it would permit “a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.” Cong. Globe, 39th Cong., 2d Sess., 730. Senator Trumbull, sponsor of the bill, met the objection with an amendment adding the words, “within their respective jurisdictions,” as a circumscription of the power of the district courts to issue the writ.

But developments since Ahrens have had a profound impact on the continuing vitality of that decision. First, in the course of overruling the application of Ahrens to the ordinary case where a prisoner attacks the conviction and sentence of a federal or state court, Congress has indicated that a number of the premises which were thought to require that decision are untenable. A 1950 amendment to the habeas corpus statute requires that a collateral attack on a federal sentence be brought in the sentencing court rather than the district where the prisoner is confined. 28 U. S. C. § 2255. Similarly, a prisoner contesting a conviction and sentence of a state court of a State which contains two or more federal judicial districts, who is confined in a district within the State other than that in which the sentencing court is located, has the option of seeking habeas corpus either in the district where he is confined or the district where the sentencing court is located. 28 U. S. C. § 2241 (d). In enacting these amendments, Congress explicitly recognized the substantial advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy. And Congress has further challenged the theoretical underpinnings of the decision by codifying in the habeas corpus statute a procedure we sanctioned in Walker v. Johnston, 312 U. S. 275, 284 (1941), whereby a petition for habeas corpus can in many instances be resolved without requiring the presence of the petitioner before the court that adjudicates his claim. 28 U. S. C. § 2243. See also United States v. Hayman, 342 U. S. 205, 222-223 (1952).

This Court, too, has undercut some of the premises of the Ahrens decision. Where American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners’ absence from the district does not present a jurisdictional obstacle to the consideration of the claim. Burns v. Wilson, 346 U. S. 137 (1953), rehearing denied, 346 U. S. 844, 851-852 (opinion of Frankfurter, J.); cf. Toth v. Quarles, 350 U. S. 11 (1955); Hirota v. MacArthur, 338 U. S. 197, 199 (1948) (Douglas, J., concurring (1949)).

A further, critical development since our decision in Ahrens is the emergence of new classes of prisoners who are able to petition for habeas corpus because of the adoption of a more expansive definition of the “custody” requirement of the habeas statute. See Peyton v. Rowe, 391 U. S. 54 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963). The overruling of McNally v. Hill, 293 U. S. 131 (1934), made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of prisoner’s attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama. In fact, a slavish application of the rule would jar with the very purpose underlying the addition of the phrase, “within their respective jurisdictions.” We cannot assume that Congress intended to require the Commonwealth of Kentucky to defend its action in a distant State and to preclude the resolution of the dispute by a federal judge familiar with the laws and practices of Kentucky. See United States ex rel. Meadows v. New York, 426 F. 2d 1176, 1181 (CA2 1970); Word v. North Carolina, 406 F. 2d 352 (CA4 1969).

IV

In view of these developments since Ahrens v. Clark, we can no longer view that decision as establishing an inflexible jurisdictional rule, dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of our decision. Of course, in many instances the district in which petitioners are held will be the most convenient forum for the litigation of their claims. On the facts of Ahrens itself, for example, petitioners could have challenged their detention by bringing an action in the Eastern District of New York against the federal officials who confined them in that district. No reason is apparent why the District of Columbia would have been a more convenient forum, or why the Government should have undertaken the burden of transporting 120 detainees to a hearing in the District of Columbia. Under these circumstances, traditional principles of venue would have mandated the bringing of the action in the Eastern District of New York, rather than the District of Columbia. Ahrens v. Clark stands for no broader proposition.

Since the petitioner’s absence from the Western District of Kentucky did not deprive the court of jurisdiction, and since the respondent was properly served in that district, see Strait v. Laird, 406 U. S. 341 (1972); Schlanger v. Seamans, 401 U. S. 487 (1971), the court below erred in ordering the dismissal of the petition on jurisdictional grounds. The judgment of the Court of

Appeals is reversed and the case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Blackmun,

concurring in the result.

I concur in the result. The conclusion the Court reaches is not unexpected when one notes the extraordinary expansion of the concept of habeas corpus effected in recent years. See Ex parte Hull, 312 U. S. 546 (1941); Ex parte Endo, 323 U. S. 283 (1944); Jones v. Cunningham, 371 U. S. 236 (1963); Peyton v. Rowe, 391 U. S. 54 (1968); Carajus v. LaVallee, 391 U. S. 234 (1968); Nelson v. George, 399 U. S. 224 (1970). Cf. Schlanger v. Seamans, 401 U. S. 487 (1971). A trend of this kind, once begun, easily assumes startling proportions. The present case is but one more step, with the Alabama warden now made the agent of the Commonwealth of Kentucky.

I do not go so far as to say that on the facts of this case the result is necessarily wrong. I merely point out that we have come a long way from the traditional notions of the Great Writ. The common-law scholars of the past hardly would recognize what the Court has developed, see 4 W. Blackstone, Commentaries *131-134, and they would, I suspect, conclude that it is not for the better.

The result in this case is not without its irony. The petitioner’s speedy trial claim follows upon his escape from Kentucky custody after that State, at its expense, had returned the petitioner from California to stand trial in Kentucky. Had he not escaped, his Kentucky trial would have taken place five years ago> Furthermore, the petitioner is free to assert his speedy trial claim in the Kentucky courts if and when he is brought to trial there. And the claim, already strong on the facts here, increases in strength as time goes by.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Powell concur, dissenting.

Today the Court overrules Ahrens v. Clark, 335 U. S. 188 (1948), which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U. S. C, § 2241. Although considerations of “convenience” may support the result reached in this case, those considerations are, in this context, appropriate for Congress, mot this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent “developments” are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus “within their respective jurisdictions” for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of Peyton v. Rowe, 391 U. S. 54 (1968), and implicitly rejects Ex parte Royall, 117 U. S. 241 (1886).

I

In order to appreciate the full impact of the Court’s decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to deliver him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was “in custody” of Kentucky authorities and that the “custody” was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a question that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner.

II

The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since Peyton v. Rowe, supra, “discarded the prematurity doctrine,” ante, at 488, “petitioner is entitled to raise his speedy trial claim on federal habeas corpus.”

Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U. S. C. §§ 2241, 2254. Section 2254 pertains only to a prisoner in custody. pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no § 2254 trap to “ensnare” petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under § 2241 (c) (3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed.

The Court reasons that since Smith v. Hooey, 393 U. S. 374 (1969), held that a State must, consistent with the Sixth and Fourteenth Amendments, “make a diligent, good-faith effort to bring” a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, id., at 383, and, since Peyton v. Rowe, supra, overruled “the prematurity doctrine,” therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning.

In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that- the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner.

It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some “right” under Smith v. Hooey, supra, he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under § 2241 (c)(3). Smith v. Hooey did not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. Barker v. Wingo, 407 U. S. 514 (1972). The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant’s favor. But Smith v. Hooey does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, Smith v. Hooey, it must face the consequences of possibly not obtaining a conviction, Barker v. Wingo. But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of habeas corpus and the principles of federalism strongly support the approach established by Ex parte Royall, supra, that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.

The Court’s reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a “future custody.” The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be “in custody” for purposes of §§ 2241 (c)(3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly “in custody” when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court’s suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the “future,” which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as “substantially a post-conviction device,” 391 U. S., at 60, and “the instrument for resolving fact issues not adequately developed in the original proceedings.” Id., at 63. The Court there stated that the demise of the McNally rule would allow prisoners “the opportunity to challenge defective convictions.” Id., at 65.

The Court here glosses over the disparate procedural posture of this case, and merely asserts, without analyzing the historical function of federal habeas corpus for state prisoners, that the rationale of Peyton is applicable to a pretrial, preconviction situation. Citation to that decision cannot obscure the fact that the Court here makes a significant departure from previous decisions, a departure that certainly requires analysis and justification more detailed than that which the Court puts forth.

There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U. S. C. § 2241 (c)(3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances.

In Ex parte Royall, supra, the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote:

“That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” 117 U. S., at 251.

The judicial approach set forth in Ex parte Royall— that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitution — has been consistently followed. Cook v. Hart, 146 U. S. 183 (1892) (custody alleged to violate Art. 4, § 2); New York v. Eno, 155 U. S. 89 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U. S. 231 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U. S. 1 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U. S. 516 (1886); In re Duncan, 139 U. S. 449 (1891); In re Wood, 140 U. S. 278 (1891); In re Frederick, 149 U. S. 70 (1893). The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus’s Case, 120 U. S. 1 (1887); In re Loney, 134 U. S. 372 (1890); In re Neagle, 135 U. S. 1 (1890).

The effect of today's ruling that federal habeas corpus prior to trial is appropriate because it will determine the validity of custody that may be imposed in actuality only sometime in the indefinite future constitutes an unjustifiable federal interference with the judicial administration of a State’s criminal laws. The use of federal habeas corpus is, presumably, limited neither to the interstate detainer situation nor to the constitutional rights secured by the Sixth and Fourteenth Amendments. The same reasoning would apply to a state prisoner who alleges that “future custody” will result because the State plans to introduce at a criminal trial sometime in the future a confession allegedly obtained in violation of the Fifth and Fourteenth Amendments, or evidence obtained in violation of the Fourth and Fourteenth Amendments. I thoroughly disagree with this conversion of federal habeas corpus into a pretrial-motion forum for state prisoners.

III

In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules Ahrens v. Clark, supra, and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that “the presence within the territorial jurisdiction of the District Court of the person detained is [a] prerequisite to filing a petition for writ of habeas corpus.” 335 U. S., at 189. The Court construed the phrase “within their respective jurisdictions” to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. Id., at 193.

The Court here says that the “language” of Ahrens “indicates” the result reached below. The explicit holding of the Court, however, is plainly much more than an “indication.”

“Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so.” Id., at 192-193 (emphasis added; footnote omitted).

The result reached today may be desirable from the point of view of sound judicial administration, see Ahrens v. Clark, supra, at 191; Nelson v. George, 399 U. S. 224, 228 n. 5 (1970). It is the function of this Court, however, to ascertain the intent of Congress as to the meaning of “within their respective jurisdictions.” Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See Cleveland v. United States, 329 U. S. 14 (1946). We noted in Nelson that the resolution of any apparent dilemma “caused” by this Court’s holding in Ahrens is appropriately one to be undertaken by Congress. 399 U. S., at 228 n. 5. Legislative “inaction” in amending a statute to comport with this Court’s evaluation of “[s]ound judicial administration” hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action.

The Court lists several “developments” that have somehow undercut the validity, in the Court’s opinion, of the statutory interpretation of the phrase “within their respective jurisdictions.” As the amended § 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as § 2241 (d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of § 2241 (c) (3) is not a little obscure. The interpretation of the phrase “within their respective jurisdictions” in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that Burns v. Wilson, 346 U. S. 137 (1953), “undermines” Ahrens overlooks the fact that the Court in Ahrens specifically reserved that question, 335 U. S., at 192 n. 4, the resolution of which is by no means an explicit rejection of Ahrens. Finally, the fact that this Court has expanded the notion of “custody” for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase.

In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court’s interpretation of the phrase in Ahrens, deliberately chose not to amend § 2241 (c) (3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). See also n. 13,. ante, at 497.

I would adhere to this Court’s interpretation of the legislative intent set forth in Ahrens v. Clark, supra, and leave it to Congress, during the process of considering legislation to amend this section, to consider and to weigh the various policy factors that the Court today weighs for itself.

        White v. Tennessee, 447 F. 2d 1354 (CA6 1971).

       Compare United States ex rel. Meadows v. New York, 426 F. 2d 1176 (CA2 1970), and Word v. North Carolina, 406 F. 2d 352 (CA4 1969) (proper forum is in the demanding State), with United States ex rel. Van Scoten v. Pennsylvania, 404 F. 2d 767 (CA3 1968), Ashley v. Washington, 394 F. 2d 125 (CA9 1968), and Booker v. Arkansas, 380 F. 2d 240 (CA8 1967) (proper forum is in the State of confinement).

       See generally Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1087-1093 (1970).

       In Smith v. Hooey, 393 U. S. 374 (1969), we considered a speedy trial claim similar to the one presented in the ease before us, and we held that a State which had lodged a detainer against a petitioner in another State must, on the prisoner’s demand, “make a diligent, good-faith effort” to bring the prisoner to trial. Id,., at 383. But that ease arose on direct review of the denial of relief by the state court, and we had no occasion to consider whether the same or similar claims could have been raised on federal habeas corpus. Yet it logically follows from Peyton v. Rowe, 391 U. S. 54 (1968), that the claims can be raised on collateral attack. In this context, as opposed to the situation presented in Peyton, the “future custody” under attack will not be imposed by the same sovereign which holds the petitioner in his current confinement. Nevertheless, the considerations which were held in Peyton to warrant a prompt resolution of the claim also apply with full force in this context. 391 U. S., at 63-64. See United States ex rel. Meadows v. New York, supra, at 1179. Word v. North Carolina, supra, at 353-355. Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is “in custody” for purposes of 28 U. S. C. §2241 (c)(3). On the facts of this case, we need not decide whether, if no detainer had been issued against him, petitioner would be sufficiently “in custody” to attack the Kentucky indictment by an action in habeas corpus.

       Cf. Baker v. Grice, 169 U. S. 284 (1898), where this Court held that a petitioner for a writ of habeas corpus had failed to exhaust state court remedies. In rejecting each of the grounds relied on by the federal court below in concluding that special circumstances warranted that court’s immediate intervention, this Court stated:
      “It is also said that since the trial of Hathaway and the granting of a new trial to him the case of the petitioner [Grice] has not been called for trial, and that two terms of court since the granting of a new trial to Hathaway had come and the second one was about expiring at the tune when the petitioner filed his petition in the Circuit Court for this writ. Here, again, there is no allegation and no proof that any attempt had been made on the part of this petitioner to obtain a trial in the state court or that he had been refused such trial by that court upon any application which he made. It is the simple case of a failure to call the indictment for trial, the petitioner being in the meantime on bail and making no effort to obtain a trial and evincing no desire by way of a demand that a trial in his case should be had.
      “We do not say that a refusal to try a person who is on bail can furnish any foundation for a resort to the Federal courts, even in cases in which a trial may involve Federal questions, but in this case no refusal is shown. A mere omission to move the case for trial (the party being on bail) is all that is set up, coupled with the assertion that defendant was eager and anxious for trial, but showing no action whatever on his part which might render such anxiety and eagerness known to the state authorities.” Id., at 292-293.
      Cf. Young v. Ragen, 337 U. S. 235, 238-239 (1949); Marino v. Ragen, 332 U. S. 561, 563-570 (1947) (Rutledge, J., concurring).

       See Chauncey v. Second Judicial District Court, 453 F. 2d 389, 390 n. 1 (CA9 1971); Beck v. United States, 442 F. 2d 1037 (CA5 1971); Kane v. Virginia, 419 F. 2d 1369 (CA4 1970); May v. Georgia, 409 F. 2d 203 (CA5 1969); White v. Coleman, 341 F. Supp. 272, 274 (WD Ky. 1971) (dictum); United States ex rel. Pitts v. Rundle, 325 F. Supp. 480 (ED Pa. 1971) (dictum); Williams v. Pennsylvania, 315 F. Supp. 1261 (WD Mo. 1970) (dictum); Varallo v. Ohio, 312 F. Supp. 45 (ED Tex. 1970) (dictum); Campbell v. Smith, 308 F. Supp. 796 (SD Ga. 1970); Piper v. United States, 306 F. Supp. 1259 (Conn. 1969) (dictum); United States ex rel. White v. Hocker, 306 F. Supp. 485 (Nev. 1969). But see Lawrence v. Blackwell, 298 F. Supp. 708 (ND Ga. 1969); Carnage v. Sanborn, 304 F. Supp. 857 (ND Ga. 1969); Kirk v. Oklahoma, 300 F. Supp. 453 (WD Okla. 1969) (alternative holding).

       See United States v. Hayman, 342 U. S. 205 (1952), discussing the legislative history of 28 U. S. C. § 2255; S. Rep. No. 1502, 89th Cong., 2d Sess., 2 (1966), discussing 28 U. S. C. § 2241 (d); Uniform Post-Conviction Procedure Act § 3; American Bar Association Project on Standards for Criminal Justice, Post-Conviction Remedies § 1.4, p. 28 (approved draft 1968); Note, Developments in the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1161 (1970).

       S. Rep. No. 1526, 80th Cong., 2d Sess., 3 (1948).

       But see Fairman, Some New Problems of the Constitution Following the Flag, 1 Stan. L. Rev. 687, 633-640 (1949).

       Act of Feb. 5, 1867, 14 Stat. 385.

       As passed, the statute provided:
      “That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions . . . shall have power to grant writs of habeas corpus 14 Stat. 385.

       The amendment was adopted in 1966.

       See H. R. Rep. No. 1894, 89th Cong., 2d Sess. (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966) (legislative history of amendments to 28 U. S. C. §2241 (d)); United States v. Hayman, 342 U. S. 205 (1952) (discussing legislative history of 28 U. S. C. § 2255). Of course, these amendments were not motivated solely by a desire to insure that the disputes could be resolved in the most convenient forum. It was also a critical part of the congressional purpose to avoid the vastly disproportionate burden of handling habeas corpus petitions which had fallen, prior to the amendments, on those districts in which large numbers of prisoners are confined.

       See Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1189-1191 (1970).

       Nothing in this opinion should be taken to preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner’s claim by a federal district court in the district of confinement. But as we have made clear above, that forum will not in the ordinary ease prove as convenient as the district court in the State which has lodged the detainer. Where a prisoner brings an action in the district of confinement attacking a detainer lodged by another State, the court can, of course, transfer the suit to a more convenient forum. 28 U. S. C. § 1404 (a). Hoffman v. Blaski, 363 U. S. 335 (1960).

       Obviously, since petitioner could not have presented his habeas corpus claim prior to our 1968 decision in Peyton v. Rowe, supra, and since the choice-of-forum provisions in the habeas corpus statute were most recently amended in 1966, see n. 13, supra, we can hardly draw any inference from the fact that the amendment did not specifically overrule Ahrens with respect to the type of case now before us.

       In Nelson v. George, 399 U. S. 224, 228 n. 5 (1970), we adverted to, but reserved judgment on, the precise question at issue here. We did point out, however, that the “obvious, logical, and practical solution is an amendment to § 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment.” We note that an amendment to § 2241 drafted by the Administrative Conference of the United States Courts was introduced during the 92d Congress, but no action was taken upon it.