author: Mr. Justice Brennan Mr. Chief Justice Burger, Me. Justice Blackmun, Mr. Justice Douglas,

text:
    ADAMS v. ILLINOIS
    No. 70-5038.
    Argued December 7, 1971
    Decided March 6, 1972
    Brennan, J., announced the Court’s judgment and delivered an opinion, in which Stewart and White, JJ., joined. Burger, C. J., filed an opinion concurring in the result, post, p. 285. Blackmun, J., filed a statement concurring in the result, post, p. 286. Douglas, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 286. Powell and Rehnquist, JJ., took no part in the consideration or decision of the ease.

      Edward M. Genson argued the cause for petitioner. With him on the brief were Charles B. Evins, R. Eugene Pincham, and Sam Adam.

      E. James Gildea argued the cause for respondent. On the brief were William J. Scott, Attorney General of Illinois, Joel M. Flawn, First Assistant Attorney General, and James B. Zagel and James R. Streicker, Assistant Attorneys General.
   Mr. Justice Brennan

announced the judgment of the Court and an opinion, in which Mr. Justice Stewart and Mr. Justice White join.

In Coleman v. Alabama, 399 U. S. 1, decided June 22, 1970, we held that a preliminary hearing is a critical stage of the criminal process at which the accused is constitutionally entitled to the assistance of counsel. This case presents the question whether that constitutional doctrine applies retroactively to preliminary hearings conducted prior to June 22, 1970.

The Circuit Court of Cook County, Illinois, conducted a preliminary hearing on February 10, 1967, on a charge against petitioner of selling heroin. Petitioner was not represented by counsel at the hearing. He was bound over to the grand jury, which indicted him. By pretrial motion he sought dismissal of the indictment on the ground that it was invalid because of the failure of the court to appoint counsel to represent him at the preliminary hearing. The motion was denied on May 3, 1967, on the authority of People v. Morris, 30 Ill. 2d 406, 197 N. E. 2d 433 (1964). In Morris the Illinois Supreme Court held that the Illinois preliminary hearing was not a critical stage at which the accused had a constitutional right to the assistance of counsel. Petitioner's conviction was affirmed by the Illinois Supreme Court, which rejected petitioner's argument that the later Coleman decision required reversal. The court acknowledged that its Morris decision was superseded by Coleman, but held that Coleman applied only to preliminary hearings conducted after June 22, 1970, the date Coleman was decided. 46 Ill. 2d 200, 263 N. E. 2d 490 (1970). We granted certiorari limited to the question of the retroactivity of Coleman. 401 U. S. 953 (1971). We affirm.

The criteria guiding resolution of the question of the retroactivity of new constitutional rules of criminal procedure “implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the “major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials Williams v. United States, 401 U. S. 646, 653 (1971). Examples are the right to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963); on appeal, Douglas v. California, 372 U. S. 353 (1963); or at some forms of arraignment, Hamilton v. Alabama, 368 U. S. 52 (1961). See generally Stovall v. Denno, supra, at 297-298; Williams v. United States, supra, at 653 n. 6.

However, “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree,” Johnson v. New Jersey, 384 U. S. 719, 728-729 (1966); it is a “question of probabilities.” Id., at 729. Thus, although the rule requiring the assistance of counsel at a lineup, United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967), is “aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence,” we held that the probabilities of infecting the integrity of the truth-determining process by denial of counsel at the lineup were sufficiently less than the omission of counsel at the trial itself or on appeal that those probabilities “must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice.” Stovall v. Denno, supra, at 298.

We hold that similarly the role of counsel at the preliminary hearing differs sufficiently from the role of counsel at trial in its impact upon the integrity of the factfinding process as to require the weighing of the probabilities of such infection against the elements of prior justified reliance and the impact of retroactivity upon the administration of criminal justice. We may lay aside the functions of counsel at the preliminary hearing that do not bear on the factfinding process at trial — counsel's help in persuading the court not to hold the accused for the grand jury or meanwhile to admit the accused to bail. Coleman, 399 U. S., at 9. Of counsel's other functions — to “fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial,” to “discover the case the State has against his client,” “making effective arguments for the accused on such matters as the necessity for an early psychiatric examination . . . ,” ibid. — impeachment and discovery may make particularly significant contribution to the enhancement of the factfinding process, since they materially affect an accused’s ability to present an effective defense at trial. But because of limitations upon the use of the preliminary hearing for discovery and impeachment purposes, counsel cannot be as effectual as at trial or on appeal. The authority of the court to terminate the preliminary hearing once probable cause is established, see People v. Bonner, 37 Ill. 2d 553, 560, 229 N. E. 2d 527, 531 (1967), means that the degree of discovery obtained will vary depending on how much evidence the presiding judge receives. Too, the preliminary hearing is held at an early stage of the prosecution when the evidence ultimately gathered by the prosecution may not be complete. Cf. S. Rep. No. 371, 90th Cong., 1st Sess., 33, on amending 18 U. S. C. § 3060. Counsel must also avail himself of alternative procedures, always a significant factor to be weighed in the scales. Johnson v. New Jersey, 384 U. S., at 730. Illinois provides, for example, bills of particulars and discovery of the names of prosecution witnesses. Ill. Rev. Stat., c. 38, §§ 114-2, 114-9, 114-10 (1971). Pretrial statements of prosecution witnesses may also be obtained for use for impeachment purposes. See, e. g., People v. Johnson, 31 Ill. 2d 602, 203 N. E. 2d 399 (1964).

We accordingly agree with the conclusion of the Illinois Supreme Court, “On this scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to 'the integrity of the truth-determining process at trial’ than the omission of counsel at the trial itself or on appeal. Such danger is not ordinarily greater, we consider, at a preliminary hearing at which the accused is unrepresented than at a pretrial line-up or at an interrogation conducted without presence of an attorney.” 46 Ill. 2d, at 207, 263 N. E. 2d, at 494.

We turn then to weighing the probabilities that the denial of counsel at the preliminary hearing will infect the integrity of the factfinding process at trial against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice. We do not think that law enforcement authorities are to be faulted for not anticipating Coleman. There was no clear foreshadowing of that rule. A contrary inference was not unreasonable in light of our decisions in Hamilton v. Alabama, 368 U. S. 52, and White v. Maryland, 373 U. S. 59 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncounseled plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonably regarded Hamilton and White as fashioning limited constitutional rules governing preliminary hearings. See, e. g., the decision of the Illinois Supreme Court in People v. Morris, 30 Ill. 2d 406, 197 N. E. 2d 433. Moreover, a number of courts, including all of the federal courts of appeals had concluded that the preliminary hearing was not a critical stage entitling an accused to the assistance of counsel. It is thus clear there has been understandable and widespread reliance upon this view by law enforcement officials and the courts.

It follows that retroactive application of Coleman “would seriously disrupt the administration of our criminal laws.” Johnson v. New Jersey, 384 U. S., at 731. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine whether the denial of counsel at the preliminary hearing constituted harmless error. Cf. Stovall v. Denno, 388 U. S., at 300. The task of conducting such hearings would be immeasurably complicated by the need to construct a record of what occurred. In Illinois, for example, no court reporter was present at pre-Coleman preliminary hearings and the proceedings are therefore not recorded. See People v. Givans, 83 Ill. App. 2d 423, 228 N. E. 2d 123 (1967). In addition, relief from this constitutional error would require not merely a new trial but also, at least in Illinois, a new preliminary hearing and a new indictment. The impact upon the administration of the criminal law of that requirement needs no elaboration. Therefore, here also, “[t]he unusual force of the countervailing considerations strengthens our con-elusion in favor of prospective application.” Stovall v. Denno, supra, at 299.

We do not regard petitioner’s case as calling for a contrary conclusion merely because he made a pretrial motion to dismiss the indictment, or because his conviction is before us on direct review. “[T]he factors of reliance and burden on the administration of justice [are] entitled to such overriding significance as to make [those] distinction [s] unsupportable.” Stovall v. Denno, supra, at 300-301. Petitioner makes no claim of actual prejudice constituting a denial of due process. Such a claim would entitle him to a hearing without regard to today’s holding that Coleman is not to be retroactively applied. See People v. Bernatowicz, 35 Ill. 2d 192, 198, 220 N. E. 2d 745, 748 (1966); People v. Bonner, 37 Ill. 2d 553, 561, 229 N. E. 2d 527, 532 (1967).

Affirmed.

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

Mr. Chief Justice Burger,

concurring in the result.

I concur in the result but maintain the view expressed in my dissent in Coleman v. Alabama, 399 U. S. 1, 21 (1970), that while counsel should be provided at preliminary hearings as a matter of sound policy and judicial administration, there is no constitutional requirement that it be done. As I noted in Coleman, the constitutional command applies to “criminal prosecutions,” not to the shifting notion of “critical stages.” Nor can I join in the view that it is a function of constitutional adjudication to assure that defense counsel can “fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial” or “discover the case the State has against his client.” 399 U. S., at 9. Nothing could better illustrate the extra-constitutional scope of Coleman than the interpretation of it now to explain why we do not make it “retroactive.”

Me. Justice Blackmun,

concurring in the result.

Inasmuch as I feel that Coleman v. Alabama, 399 U. S. 1 (1970), was wrongly decided, I concur in the result.

Mr. Justice Douglas,

with whom Mr. Justice Marshall concurs, dissenting.

Until Linkletter v. Walker, 381 U. S. 618 (1965), the Court traditionally applied new constitutional criminal procedure standards to cases finalized and police practices operative before the promulgation of the new rules. Linkletter, however, was the cradle of a new doctrine of nonretroactivity which exempts from relief the earlier victims of unconstitutional police practices. I have disagreed on numerous occasions with applications of various brands of this doctrine and I continue my dissent in this case. My own view is that even-handed justice requires either prospectivity only or complete retro-activity. To me there is something inherently invidious as Mr. Justice Harlan phrased it, in “[s] imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule . . . .” Mackey v. United States, 401 U. S. 667, 679 (1971) (separate opinion). I agree with his critique, id., at 695, that the purported distinction between those rules that are designed to improve the factfinding process and those designed to further other values was “inherently intractable” and to illustrate his point he adverted to the Court’s difficulty in reconciling with its rule such nonretroactivity cases as Johnson v. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293 (1967), and DeStefano v. Woods, 392 U. S. 631 (1968), all of which held nonretroactive decisions designed, in part, to enhance the integrity of the factfinding process. He also questioned the workability of any rule which requires a guess as to “whether a particular decision has really announced a ‘new’ rule at all or whether it has simply applied a well-established constitutional principle.” Mackey v. United States, supra, at 695; Desist v. United States, 394 U. S. 244, 263 (1969). For example, as I suggest infra, at 293-295, a serious question arises in this case whether Coleman v. Alabama, 399 U. S. 1 (1970), should have been fully anticipated by state judicial authorities.

Additionally, it is curious that the plurality rule is sensitive to “reasonable reliance” on prior standards by law enforcement agencies but is unconcerned about the unfairness of arbitrarily granting relief to Coleman but denying it to Adams.

Given my disagreement with the plurality’s rule, I am reluctant even to attempt to apply it, but even by its own terms, the balancing approach would appear to require that we hold Coleman retroactive. This conclusion reinforces my fear that the process is too imprecise as a neutral guide for either this Court or the lower courts and will invariably permit retroactivity decisions to turn on predilections, not principles.

I

In applying the rule, I am first troubled by the plurality’s adoption of the finding of the court below that: “On [the] scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to 'the integrity of the truth-determining process at trial’ than the omission of counsel at the trial itself or on appeal.” Ante, at 282-283. The same might have been said of the right to counsel at sentencing, Mempa v. Rhay, 389 U. S. 128 (1967), at certain arraignments, Hamilton v. Alabama, 368 U. S. 52 (1961), or at preliminary hearings where guilty pleas were taken, White v. Maryland, 373 U. S. 59 (1963), all of which have been held retroactive.

Rather than reaching for these analogies, however, the plurality suggests that the danger to the integrity of the truth-determining process is no greater here than at a pretrial lineup or at an interrogation conducted without counsel. In relying on these analogies, the plurality gives short shrift to the argument that “in practice [the preliminary] hearing may provide the defense with the most valuable discovery technique available to him,” Wheeler v. Flood, 269 F. Supp. 194, 198 (EDNY 1967), an objective which is not so readily achievable at lineups and interrogations at which counsel serves only a protective function. The State’s access to superior investigative resources and its ability to keep its case secret until trial normally puts the defendant at a clear disadvantage. In light of this disparity, one important service the preliminary hearing performs is to permit counsel to penetrate the evidence offered by the prosecution at the hearing, to test its strengths and weaknesses (without the presence of a jury), to learn the names and addresses of witnesses, to focus upon the key factual issues in the upcoming trial, and to preserve testimony for impeachment purposes. The alternative discovery techniques suggested now by the plurality are puny in comparison. A bill of particulars can usually reach only prosecution witnesses’ names, and it may be cold comfort to defense counsel to learn that he can obtain pretrial statements of prosecution witnesses inasmuch as such statements are often prepared from the State’s viewpoint and have not been subjected to cross-examination. And in many States such statements are not discoverable.

Finally, when read in light of Coleman’s exaltation of the virtues of counseled preliminary hearings, the present language of the plurality may lend itself to a “credibility gap” between it and those involved in the administration of the criminal process. “Plainly,” said the Coleman Court, “the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution,” Coleman v. Alabama, supra, at 9, and: “The inability of the indigent accused on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a ‘critical stage’ of the State’s criminal process at which the accused, is ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 9-10. It will now appear somewhat anomalous that the right to counsel at a preliminary hearing is fundamental enough to be incorporated into the Fourteenth Amendment but not fundamental enough to warrant application to the victims of previous unconstitutional conduct.

II

I also believe that the plurality’s case for establishing good-faith reliance on “the old standards” by state judicial systems ignores important developments in the right-to-counsel cases prior to Coleman. First of all, no decision of this Court had held that counsel need not be afforded at the preliminary hearing stage. Therefore, to build a case for good-faith reliance the State must wring from our decision the negative implication that uncoun-seled probable-cause hearings were permissible. Such negative implications are found, says the plurality, in Hamilton v. Alabama, 368 U. S. 52 (1961), and White v. Maryland, 373 U. S. 59 (1963), cases reversing convictions obtained through the use at trial of uncounseled guilty pleas entered at preliminary hearings. Neither of those decisions, however, faced the question of whether reversal was required on the facts of the instant case. And, though I have studied these two short opinions, I am unable, as is the plurality, to divine any hidden message to law enforcement agencies that we would permit the denial of counsel at preliminary hearings where guilty pleas were not taken. Rather, these cases reinforce, in my mind, the importance of counsel at every stage in the criminal process. In any event, by the time Coleman came down, it was clear, as Mr. Justice Harlan opined, albeit with some regret, that our holding was an inevitable consequence of prior case law:

“If I felt free to consider this case upon a clean slate I would have voted to affirm these convictions. But — in light of the lengths to which the right to appointed counsel has been carried in recent decisions of this Court, see Miranda v. Arizona, 384 U. S. 436 (1966); United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Mathis v. United States, 391 U. S. 1 (1968); and Orozco v. Texas, 394 U. S. 324 (1969) — I consider that course is not open to me with due regard for the way in which the adjudicatory process of this Court, as I conceive it, should work. . . .
“It would indeed be strange were this Court, having held a suspect or an accused entitled to counsel at such pretrial stages as 'in-custody’ police investigation, whether at the station house (Miranda) or even in the home {Orozco), now to hold that he is left to fend for himself at the first formal confrontation in the courtroom.” Coleman v. Alabama, supra, at 19-20 (separate opinion).

Thus, in the instant case, at the times relevant, the State should have foreseen that the right to counsel attached to the probable-cause hearing.

Ill

I also disagree that “[t]he impact upon the administration of the criminal law of [Coleman retroactivity] needs no elaboration.” Ante, at 284. In the 19 months since Coleman was decided all new prosecutions have presumably followed it and we therefore need only be concerned, for impact purposes, with those state proceedings in which a preliminary hearing was held prior to June 1970. Inasmuch as the median state sentence served by felons when they are first released is about 20.9 months, most pre-Coleman sentences would now be served and as a practical matter these former prisoners would not seek judicial review. Moreover, we may exclude from our consideration those 16 or more States that prior to Coleman routinely appointed counsel at or prior to preliminary hearings. See American Bar Association, Project on Standards for Criminal Justice, Providing Defense Services § 5.1 (Approved Draft 1968). Additionally, we may exclude from consideration the possibility of collateral challenges by federal prisoners inasmuch as counsel have routinely been present at preliminary hearings before federal commissioners. See Fed. Rule Crim. Proc. 5 (b).

While there are some current prisoners who might challenge their confinements if Coleman were held retrospective, many of these attacks would probably fail under the harmless-error rule of Chapman v. California, 386 U. S. 18 (1967). The plurality opinion suggests that conducting such harmless-error proceedings would be onerous. One reason given is that in Illinois, for example, preliminary hearings were not recorded before Coleman. That assertion may not be entirely accurate in light of the fact that this very record contains a transcript of Adams’ preliminary hearing. Perhaps, as the respondent seems to concede, transcripts were made available in other Illinois cases. That is the more reasonable assumption in light of our holding in Roberts v. LaVallee, 389 U. S. 40 (1967), that the State must provide a preliminary hearing transcript to an indigent in every circumstance in which the more affluent accused could obtain one.

Even where a transcript was not available, however, a prisoner might be able to show at an evidentiary hearing that he was prejudiced by a particular need for discovery, by the inability to preserve the testimony of either an adverse or favorable witness, or by the inability to secure his release on bail in order to assist in the preparation of his defense. Courts are accustomed, of course, to assessing claims of prejudice without the aid of transcripts of previous proceedings, such as is required by Jackson v. Denno, 378 U. S. 368 (1964), or Townsend v. Sain, 372 U. S. 293 (1963). Indeed, in Coleman we remanded for a determination of whether the failure to appoint counsel had been harmless error. 399 U. S., at 11. Not every Coleman claim would warrant an evi-dentiary hearing. Many attacks might be disposed of summarily, such as a challenge to a conviction resulting from a counseled guilty plea entered before any prejudice had materialized from an uncounseled preliminary-hearing. See Procunier v. Atchley, 400 U. S. 446 (1971).

Even Stovall v. Denno, 388 U. S., at 299, the analogy frequently invoked by the plurality, held out the possibility of collateral relief in cases where prisoners could show that their lineups had imposed “such unfairness that [they] infringed [their] right to due process of law.” Conducting Coleman harmless-error hearings would not appear to be any more burdensome on the administration of criminal justice than have Stovall “fundamental fairness” post-conviction proceedings.

In any event, whatever litigation might follow a holding of Coleman retrospectivity must be considered part of the price we pay for former failures to provide fair procedures.

       The Illinois Supreme Court stated, 46 Ill. 2d, at 205-206, 263 N. E. 2d, at 493,
      “A preliminary hearing in Alabama, as in Illinois, has the purpose of determining whether there is probable cause to believe an offense has been committed by the defendant .... In both States the hearing is not a required step in the process of prosecution, as the prosecutor may seek an indictment directly from the grand jury, thereby eliminating the proceeding. ... In neither State is a defendant required to offer defenses at the hearing at the risk of being precluded from raising them at the trial itself. . . . We conclude that the preliminary hearing procedures of Alabama and Illinois are substantially alike and we must consider because of Coleman v. Alabama . . . that a preliminary hearing conducted pursuant to section 109-3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 109-3) is a 'critical stage’ in this State’s criminal process so as to entitle the accused to the assistance of counsel.”
      A right to a preliminary hearing has been constitutionally established, effective July 1, 1971. Illinois Constitution of 1970, Art. I, §7.

       Accord: Phillips v. North Carolina, 433 F. 2d 659, 662 (1970), where the Court of Appeals for the Fourth Circuit observed:
      “To be sure, if a preliminary hearing is held, the accused gains important rights and advantages that can be effectively exercised only through his attorney. Counsel’s function, however, differs from his function at trial. Broadly speaking, his role at the preliminary hearing is to advise, observe, discover the facts, and probe the state’s case. In this respect he serves in somewhat the same capacity as counsel at lineups and interrogations, which are both pretrial stages of criminal proceedings where the right to counsel has not been held retroactive.”

        Pagan Cancel v. Delgado, 408 F. 2d 1018 (CA1 1969); United States ex rel. Cooper v. Reincke, 333 F. 2d 608 (CA2 1964); United States ex rel. Budd v. Maroney, 398 F. 2d 806 (CA3 1968); DeToro v. Pepersack, 332 F. 2d 341 (CA4 1964); Walker v. Wainwright, 409 F. 2d 1311 (CA5 1969); Waddy v. Heer, 383 F. 2d 789 (CA6 1967); Butler v. Burke, 360 F. 2d 118 (CA7 1966); Pope v. Swenson, 395 F. 2d 321 (CA8 1968); Wilson v. Harris, 351 F. 2d 840 (CA9 1965); Latham v. Crouse, 320 F. 2d 120 (CA10 1963); Headen v. Untied States, 115 U. S. App. D. C. 81, 317 F. 2d 145 (1963).

         E. g., Eskridge v. Washington Prison Board, 357 U. S. 214 (1958) ; Gideon v. Wainwright, 372 U. S. 335 (1963); Jackson v. Denno, 378 U. S. 368 (1964), (see also Desist v. United States, 394 U. S. 244, 250 n. 15 (1969)); Reck v. Pate, 367 U. S. 433 (1961).

        Linkletter v. Walker, 381 U. S. 618, 640 (1965); Tehan v. Shott, 382 U. S. 406, 419 (1966); Johnson v. New Jersey, 384 U. S. 719, 736 (1966); Stovall v. Denno, 388 U. S. 293, 302 (1967); DeStefano v. Woods, 392 U. S. 631, 635 (1968); Desist v. United States, 394 U. S. 244, 255 (1969); Holliday v. United States, 394 U. S. 831, 835 (1969); Mackey v. United States, 401 U. S. 667, 713 (1971).

       It was suggested in Stovall v. Denno, supra, at 301, that a prospective-only holding would violate the Art. Ill requirement of ease or controversy. But see England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 422 (1964), where the Court exempted the petitioner from its holding. See also Johnson v. New Jersey, supra, at 733.

       While I subscribe to many of the reservations expressed by Mr. Justice Harlan, I nonetheless find his alternative rule of retrospec-tivity unsatisfactory. In Mackey v. United States, 401 U. S. 667, 675 (1971) (separate opinion), he suggested that constitutional decisions be retroactive as to all nonfinal convictions pending at the time of the particular holdings, but that prisoners seeking habeas relief should generally be treated according to the law prevailing at the time of their convictions. It is on this latter score that I am troubled. Surely it would be no more facile a task to unearth the state of law of years past than it is to assign, under the plurality’s test, a degree of reasonableness to reliance on older standards by law enforcement agencies. Where the question has arisen in this Court, we have treated habeas petitioners by the modem law, not by older rules. See Reck v. Pate, 367 U. S. 433 (1961) (habeas permitted on basis of current law to release prisoner convicted in 1936). See also Gideon v. Wainwright, 372 U. S. 335 (1963), and Jackson v. Denno, 378 U. S. 368 (1964), announcing new rules in habeas cases. Moreover, as has been concluded by Professor Schwartz, the drawing of a bright line between federal review through habeas and certiorari would be unjustified:
      “Where federal review of the constitutionality of state criminal proceedings is concerned, the making of so sharp a distinction between review on certiorari and habeas corpus is unwarranted. There is often no significant difference with respect to age and potential staleness between the two types of cases. Rather than coming years after the conviction is final, habeas corpus is often but a routine step in the criminal defense process — the normal step taken after certiorari has been denied. Sometimes, it actually replaces certiorari, for in Fay v. Noia [372 U. S. 391 (1963)] the Supreme Court advised criminal defendants to skip certiorari and to petition directly to the federal district court for habeas corpus. Even in situations in which a defendant goes through all the direct review steps, it is often nothing more than fortuitous circumstance which determines whether his case is still on direct review or is on collateral attack when the new decision comes down.
      “The difference between review on certiorari and habeas corpus seems even less significant when we look to function and actual operation. Although it is sometimes considered the 'normal’ method for obtaining federal review of state convictions, certiorari does not provide, as the Court remarked in Fay v. Noia, ‘a normal appellate channel in any sense comparable to the writ of error,’ for the Court must limit its jurisdiction to questions that have significance beyond the immediate case. Habeas corpus, on the other hand, facilitates the Court’s task in those cases it does take by providing a record focused exclusively on the federal constitutional question. Habeas corpus has thus become the primary vehicle for immediate federal review of state convictions. Further, this development has resulted in a gradual shrinking of what were once significant operational differences between review on certiorari and habeas corpus, such as the relationship to the state proceeding, the degree of independent fact-finding authority, and the significance of the defendant’s violation of state procedural rules. From both the functional and the operational standpoints, then, it is justifiable to conclude that ‘the distinctions between habeas corpus proceedings and direct review are largely illusory.’
      “In addition, drawing a fine between review [on] certiorari and habeas corpus undercuts the Supreme Court’s bypass suggestion in Fay v. Noia. If a defendant has doubts about the retroactivity of any claim which might both affect him and be subject to Court review in the foreseeable future, he will be well advised always to ignore the Court’s suggestion and to apply for certiorari. Many months may pass before his petition for certiorari is rejected, and so long as it is pending, he will be entitled to receive the benefits of any intervening decisions. As soon as he files his petition for habeas corpus, however, even if he does so only a day after the last state court order is entered, he will have forfeited his right to such benefits. He will thus be put to an election between delayed relief and no relief at all.
      “The inequity of drawing a sharp distinction between direct review and habeas corpus is, however, only one aspect of a broader inequity: treating two prisoners deprived of the same fundamental constitutional right differently merely because the Supreme Court did not get around to enunciating a particular right until after the conviction of one of them had become final. Professor Mishkin argues that worry about this point ignores ‘the reasons for barring current convictions and . . . the fact that the new rule in no way undermines the earlier determinations of factual guilt.’ To him, it is as if a guilty person were to complain of his lot because others equally guilty were not prosecuted. And though he recognizes that such claims are sometimes sustained, he concludes that ‘there are certainly rational bases for drawing a line between current convictions and those previously final/ citing excerpts from Professors Bator and Amsterdam on finality. Professor Mishkin’s sharp distinction between collateral attack and direct review thus rests ultimately on finality considerations.
      “Finality considerations seem especially weak where two cases differ only in the fact that one is still on 'direct’ review whereas the other is not. Where the two cases are far apart in age, finality considerations are admittedly more persuasive. But even there, the mere timing of the Court’s decision to grant federal protection to a fundamental right hardly seems to be a sufficient basis for unequal treatment; after all, in most instances it was not the older prisoner’s fault that the Court did not render its decision earlier. To some extent, of course, the question comes down to a choice between the competing values of equality and repose, and choices of this sort are notoriously immune to reasoned resolution. It will be suggested below, however, that the threat to finality considerations from complete retroactivity appears to have been greatly exaggerated, and if this suggestion is well taken, Professor Mishkin’s rejection of equality is especially untenable.” Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719, 731-734 (1966).

       See McConnell v. Rhay, 393 U. S. 2 (1968) (Mempa retroactive) ; Arsenault v. Massachusetts, 393 U. S. 5 (1968) (White and Hamilton retroactive).

       The investigative advantage enjoyed by the State extends beyond the prohibition of the common law against criminal discovery. It also results from the fact that the police are usually first at the scene of the crime, have access to witnesses with fresher recollections, are authorized to confiscate removable evidence,, are positioned to conduct laboratory tests on physical evidence, enjoy a communication channel with a complete undercover world of secret informers, have an air of legitimacy which is conducive to cooperation by witnesses, and have numerous ways to compel testimony even before trial. See generally Norton, Discovery in the Criminal Process, 61 J. Crim. L., C. & P. S. 11, 13-14 (1970); Comment, Criminal Law: Pre-Trial Discovery — The Right of an Indigent's Counsel to Inspect Police Reports, 14 St. Louis U. L. J. 310 (1969); Moore, Criminal Discovery, 19 Hastings L. J. 865 (1968); A State Statute to Liberalize Criminal Discovery, 4 Harv. J. Legis. 105 (1967); Comment, Disclosure and Discovery in Criminal Cases: Where Are We Headed?, 6 Duquesne U. L. Rev. 41 (1967); Bibliography: Criminal Discovery, 5 Tulsa L. J. 207 (1968); Symposium: Discovery in Federal Criminal Cases, 33 F. R. D. 53 (1963); Brennan, Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U. L. Q. 279.

       I am aware that the retroactivity theory presently commanding a Court permits a distinction between rules designed to fortify the reliability of verdicts and rules designed to protect other values. But here, as the plurality suggests, three of the four functions counsel might serve at preliminary hearings would appear to enhance the factfinding process: discovery of the State’s case, preserving of testimony of both hostile and favorable witnesses, and obtaining release on bail. Although the plurality appears to discount the investigative advantage of being free on bail, I believe that this “traditional right to freedom before conviction permits the unhampered preparation of a defense.” Stack v. Boyle, 342 U. S. 1, 4 (1951). See also Kinney v. Lenon, 425 F. 2d 209, 210 (CA9 1970), where the Court of Appeals found that “the appellant is the only person who can effectively prepare his own defense,” because the incarcerated, accused was the only person who could recognize witnesses by sight who might have seen a scuffle.

       To this list might have been added Roberts v. LaVallee, 389 U. S. 40 (1967), holding that the State must provide an indigent with a preliminary hearing transcript in every circumstance in which the more affluent accused could obtain one.

       Federal Bureau of Prisons, National Prisoner Statistics — Characteristics of State Prisoners, 1960, pp. 26-27 (1965).

       In this respect the instant ease further differs from Stovall v. Denno, 388 U. S., at 299, where it was found that: “The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification.”

       Brief for Respondent 33.

       See n. 7, supra.


source: Caselaw Access Project

author: Mr. Justice Marshauu

license: Public Domain

text:
    UNITED STATES v. MISSISSIPPI CHEMICAL CORP. et al.
    No. 70-52.
    Argued January 10, 1972
    Decided March 6, 1972
    Marshall, J., delivered the opinion of the Court, in which all Members joined except Blackmun, J., who took no part in the consideration or decision of the case.

      Matthew J. Zinn argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Walters, Thomas L. Stapleton, and Leonard J. Henzke, Jr.

      John C. Satterfield argued the cause for respondents. With him on the brief was /. Dudley Buford.

      Mac Asbitt, Jr., Harold S. Cook, D. Jeff Lance, and William W. Beckett filed a brief for Agway, Inc., et al. as amici curiae urging affirmance.
   Mr. Justice Marshauu

delivered the opinion of the Court.

Mississippi Chemical Corp. and Coastal Chemical Corp. (hereinafter taxpayers) instituted this action for a tax refund in the United States District Court for the Southern District of Mississippi. Both taxpayers are "cooperative associations” within the meaning of § 15 of the Agricultural Marketing Act, 46 Stat. 18, as amended, 12 U. S. C. § 1141 j, and thus qualify for membership in one of the 12 “Banks for Cooperatives” (hereinafter Bank(s)) established by the Farm Credit Act of 1933, 48 Stat. 257, as amended, 12 U. S. C. § 1134 et seq. Since their principal places of business are located in Mississippi, their regional Bank is the one located in New Orleans.

The Farm Credit Act of 1933 provides that members may borrow money from their Banks and, soon after securing membership in the New Orleans Bank, the taxpayers elected to borrow. Thereafter, they were required by the Farm Credit Act of 1955, 69 Stat. 656, 12 U. S. C. § 1134d (a) (3), which partially amended the 1933 Act, to make quarterly purchases of $100 par value Class C stock of the Bank equal to not less than 10% nor more than 25% of the amount of the quarterly interest that they paid to the Bank on their loans. During the period relevant to this lawsuit, the rate set by the Bank was 15%.

On their tax returns for the years in question, the taxpayers claimed a $99 interest expense deduction for every $100 stock purchase required by the statute. The Commissioner of Internal Revenue disallowed the deductions, the taxpayers paid the assessed deficiencies, and this action arose.

The United States has consistently contended that the stock that the taxpayers were required to purchase under the 1955 Act is a capital asset as defined by § 1221 of the Internal Revenue Code, 26 U. S. C. § 1221, and that its cost is nondeductible. See 26 U. S. C. § 263. The taxpayers have persistently urged that the money expended for this stock is part of “the amount [they] . . . contracted to pay for the use of borrowed money,” Old Colony R. Co. v. Commissioner, 284 U. S. 552, 560 (1932), and is deductible as interest. 26 U. S. C. § 163 (a).

The District Court found for the taxpayers and the United States Court of Appeals for the Fifth Circuit affirmed over the dissent of Judge Godbold. 431 F, 2d 1320 (1970). We granted certiorari on February 22, 1971, to review the decision of the Court of Appeals. 401 U. S. 908. We reverse for the reasons stated below.

h-i

Early in. this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U. S. C. § 641 et seq. The immediate purpose of the bill was “to afford those who [were] engaged in farming or who desire [d] to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than [were] presently] available.” H. R. Rep. No. 630, 64th Cong., 1st Sess., 2. The long-range purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2-3; S. Rep. No. 144, 64th Cong., 1st Sess., 5.

The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called “national farm loan associations.” Sec. 7, 39 Stat. 365.

In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member- was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5%' of the total loan sought by its members. The association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.

The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structuring the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure:

“The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers.” H. R. Rep. No. 630, 64th Cong., 1st Sess., 9.

Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.

To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.

The land bank system remained virtually untouched until the economic depression of the 1930’s when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D. C.

These Banks were authorized to make loans to “cooperative associations,” defined as “association[s] in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also . . . association [s] in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services.” Agricultural Marketing Act § 16, 46 Stat. 18, as amended, 12 U. S. C. § 1141j.

The new Banks paralleled in many ways those already established under the 1916 legislation. The same regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%-, the same amount of stock required of borrowers from land banks under the 1916 Act.

One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative associations did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.

As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government’s capital had been completely returned. S. Doc. No. 7, 84th Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns — owned, operated, and financed by farmers without Government assistance.

Congress also watched the development of the Banks for Cooperatives and became concerned about their lack of success in attracting and keeping private investment. By the 1950’s, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U. S. C. § 636a, Congress stated that “[i]t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration . . . .” A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.

The result of the Board’s report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress’ policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S. Doc. No. 7, 84th Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30-31.

II

Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock — A, B, and C.

Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U. S. C. § 1134d (a)(1). Once the United States’ stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers. See 12 U. S. C. §§ 1134d (a)(1), 1134b, 1134L

Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U. S. C. § 1134d (a)(2).

Class C stock may be issued only to farmers’ cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U. S. C. § 1134Í (b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. “All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each borrower bears to the total interest earned on the loans of all borrowers during the fiscal year.” Ibid. Borrowers also receive at the end of each fiscal year an “allocated surplus” credit which is payable out of the Bank’s net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25%- of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.

Only the tax treatment of the quarterly purchases is disputed here. The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends; it is transferable only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power; and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.

It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind. The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank’s inability to repay the capital extended by the Government and to retain private capital on the provision in the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.

Ill

The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank, thereby increasing the stability of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset that may be used as a set-off in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be purchased before an association could borrow from the Banks, under the taxpayers’ theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.

It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a “hidden” interest charge in the legislation. The long-range goal was to make the Banks “fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them.” Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made long-term investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.

Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345 (1971); Old Colony R. Co. v. United States, 284 U. S. 552 (1932); 26 CFR § 1.461-1.

We reject the contention that while the Class C stock may be a capital asset, it is worth only $1, and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.

The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N. Y. U. 20th Inst, on Fed. Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.

Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.

It is so ordered.

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

       Mississippi Chemical Corp. acquired the share of stock qualifying it as a borrower in 1956; Coastal Chemical Corp. acquired its qualifying share in 1957.

       Mississippi Chemical Corp. challenges the Government’s tax treatment of $55,113.19 spent from 1961 to 1963; Coastal Chemical Corp. challenges the treatment of $211,799.68 expended from 1958 to 1963.

       One dollar was treated as the cost of acquiring a capital asset.

       This decision is unreported but is found in App. 342-346. Other lower courts have split on the issue presented. Compare, e. g., M. F. A. Central Cooperative v. Bookwalter, 427 F. 2d 1341 (CA8 1970), rev’g 286 F. Supp. 956 (ED Mo. 1968), pet. for cert. pending (No. 70-22), with Penn Yan Agway Cooperative, Inc. v. United States, 189 Ct. Cl. 434, 417 F. 2d 1372 (1969).

       The statute also provided that “joint stock land banks” could be formed. These were corporations, composed of 10 or more persons, who desired to form banks to loan money to farmers without the aid of congressional financing. They were subject to the same restrictions and conditions imposed on the district land banks.

       While Congress did not disturb the land bank system, it added to it at various times. For example, Title II of the Agricultural Credits Act of 1923, 42 Stat. 1461, 12 U. S. C. § 1151 et seq. (1958 ed.), was designed to aid farmers in obtaining short-term credit.

       The Act also established a production credit system to improve short-term financing for farmers. That system has no bearing on this case.

       There is evidence in the record that the Government capital is being revolved out of the Banks just as Congress anticipated. See Farm Credit Administration, Banks for Cooperatives — A Quarter of a Century of Progress, excerpted in App. 157, 175. See also 431 F. 2d 1320, 1332, and n. 17 (Godbold, J., dissenting); Brief for the United States 7.

       The Class B shares are of only nominal importance. In 1963, they amounted to only some 5% of the total outstanding stock of the New Orleans Bank.

       The patronage refunds and the allocated surplus, discussed infra, are not a return on the amount of capital that the borrower contributes to the Bank; they are distributions of earnings, not presently convertible to cash, but are eventually convertible just as the quarterly Class C purchases may eventually be redeemed.

       The Government contended in the District Court that the taxpayers should have reported the patronage dividends as income. The District Court disagreed and the Government did not appeal this point. It is not, therefore, reviewable here, and the Government does not urge that we consider it.

       While no formal dividends are paid on the C stock, it is apparent that the patronage dividend is in many ways equivalent to the traditional corporate dividend. As noted above, the patronage dividend is not immediately convertible to cash, but it is far from worthless. Like the usual corporate dividends, the patronage dividends are paid in proportion to stock ownership. Stock ownership is apportioned according to the amount a Bank member borrows. Thus, those who borrow the most own the most stock and receive the most patronage dividends (and surplus as well). As the Class A stock and the earlier issued Class B and Class C stock are redeemed, the C stock issued as dividends will become convertible to cash and its value will be realized at that time.
      In the event of a default by a borrower, the Class C stock is set off against the amount of the loan. Hence, the more patronage dividends the member receives, the more security he has in case of default.

       Cooperative associations are entitled to vote in polls designating nominees for appointment to the Federal Farm Credit Board, established by the Farm Credit Act of 1953, 67 Stat. 390, as amended, 12 U. S. C. § 636c, to help effectuate congressional policy; to vote in the nomination polls and elections of members of district farm credit boards established by the Farm Credit Act of 1937, 50 Stat. 703, 12 U. S. C. § 640a; and to vote in the nomination and elections of directors of the Central Bank for Cooperatives. It is normal for every member of a cooperative to have only one vote, irrespective of a disparity between the shares held. See Frost v. Corporation Comm’n, 278 U. S. 515, 536-537 (1929) (Brandeis, J., dissenting); I. Packel, The Law of Cooperatives §§23-24 (a), pp. 136-140 (3d ed. 1956). It is interesting that the Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. §§ 291-292, permits a cooperative marketing association immunity from the Sherman Act under some circumstances, but only if no member is entitled to more than one vote.

       Cooperatives and corporations operate on different principles. Whereas the corporate structure separates control and management, the essence of a cooperative requires that these functions be integrated. And, whereas the value of corporate stock depends on ease of transferability (or marketability), the value of cooperative stock lies in the durable, long-term nature of the investment. See Nieman, Revolving Capital in Stock Cooperative Corporations, 13 Law & Contemp. Prob. 393 (1948).

       It is by no means clear that the Class C stock is worth only $1 even under a traditional market value analysis. The lower courts failed to include the value of the patronage and surplus dividends in computing the value of the quarterly purchases. The Class C stock may, therefore, be worth considerably more than $1, although the Government concedes that it is not worth $100. Because of the result we reach in this case, we have no occasion to make a final determination as to what value the stock would have under a market-value analysis.


author: Per Curiam. Mr. Chief Justice Burger,

text:
    RABE v. WASHINGTON
    No. 71-247.
    Argued February 29, 1972
    Decided March 20, 1972

      William L. Dwyer argued the cause and filed briefs for petitioner.

      Curtis Ludwig argued the cause for respondent. With him on the brief was Herbert H. Davis.

    Briefs of amici curiae urging reversal were filed by Stanley Fleishman and Sam Rosenwein for the National Association of Theatre Owners, Inc., and by Louis Nizer and James Bouras for the Motion Picture Association of America, Inc.

      Constantine Regusis filed a brief for Morality in Media, Inc., as amicus curiae, urging affirmance.
   Per Curiam.

Petitioner was the manager of the Park Y Drive-In Theatre in Richland, Washington, where the motion picture Carmen Baby was shown. The motion picture is a loose adaptation of Bizet’s opera Carmen, containing sexually frank scenes but no instances of sexual consummation are explicitly portrayed. After viewing the film from outside the theater fence on two successive evenings, a police officer obtained a warrant and arrested petitioner for violating Washington’s obscenity statute. Wash. Rev. Code § 9.68.010. Petitioner was later convicted and, on appeal, the Supreme Court of Washington affirmed. 79 Wash. 2d 254, 484 P. 2d 917 (1971). We granted certiorari. 404 U. S. 909. We reverse petitioner’s conviction.

The statute under which petitioner was convicted, Wash. Rev. Code § 9.68.010, made criminal the knowing display of “obscene” motion pictures:

“Every person who—
“(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or
“(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;
“Shall be guilty of a gross misdemeanor.”

In affirming petitioner’s conviction, however, the Supreme Court of Washington did not hold that Carmen Baby was obscene under the test laid down by this Court’s prior decisions. E. g., Roth v. United States, 354 U. S. 476; Memoirs v. Massachusetts, 383 U. S. 413. Uncertain “whether the movie was offensive to the standards relating to sexual matters in that area and whether the movie advocated ideas or was of artistic or literary value/’ the court concluded that if it “were to apply the strict rules of Roth, the film 'Carmen Baby’ probably would pass the definitional obscenity test if the viewing audience consisted only of consenting adults.” 79 Wash. 2d, at 263, 484 P. 2d, at 922. Respondent read the opinion , of the Supreme Court of Washington more narrowly, but nonetheless implied that because the film had “redeeming social value” it was not, by itself, “obscene” under the Roth standard. Thé Supreme Court of Washington nonetheless upheld the conviction, reasoning that in “the context of its exhibition,” Carmen Baby was obscene. Ibid.

To avoid the constitutional vice of vagueness, it is necessary, at a minimum, that a statute give fair notice that certain conduct is proscribed. The statute under which petitioner was prosecuted, however, made no mention that the “context” or location of the exhibition was an element of the offense somehow modifying the word “obscene.” Petitioner’s conviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating.

“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U. S. 196, 201. Petitioner’s conviction cannot, therefore, be allowed to stand. Gregory v. City of Chicago, 394 U. S. 111; Garner v. Louisiana, 368 U. S. 157; Cole v. Arkansas, supra.

Under the interpretation given § 9.68.010 by the Supreme Court of Washington, petitioner is criminally punished for showing Carmen Baby in a drive-in but he may exhibit it to adults in an indoor theater with impunity. The statute, so construed, is impermissibly vague as applied to petitioner because of its failure to give him fair notice that criminal liability is dependent upon the place where the film is shown.

What we said last Term in Cohen v. California, 403 U. S. 15, 19, answers respondent’s contention that the peculiar interest in prohibiting outdoor displays of sexually frank motion pictures justifies the application of this statute to petitioner:

“Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. ... No fair reading of the phrase ‘offensive conduct’ can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.”

We need not decide the broad constitutional questions tendered to us by the parties. We hold simply that a State may not criminally punish the exhibition at a drive-in theater of a motion picture where the statute, used to support the conviction, has not given fair notice that the location of the exhibition was a vital element of the offense.

The judgment of the Supreme Court of Washington is

Reversed.

Mr. Chief Justice Burger,

with whom Mr. Justice Rehnquist joins,

concurring.

I concur solely on the ground that petitioner’s conviction under Washington’s general obscenity statute cannot, under the circumstances of this case, be sustained consistent with the fundamental notice requirements of the Due Process Clause. The evidence in this case, however, revealed that the screen of petitioner’s theater was clearly visible to motorists passing on a nearby public highway and to 12 to 15 nearby family residences. In addition, young teenage children were observed viewing the film from outside the chain link fence enclosing the theater grounds. I, for one, would be unwilling to hold that the First Amendment prevents a State from prohibiting such a public display of scenes depicting explicit sexual activities if the State undertook to do so under a statute narrowly drawn to protect the public from potential exposure to such offensive materials. See Redrup v. New York, 386 U. S. 767 (1967).

Public displays of explicit materials such as are described in this record are not significantly different from any noxious public nuisance traditionally within the power of the States to regulate and prohibit, and, in my view, involve no significant countervailing First Amendment considerations. That this record shows an offensive nuisance that could properly be prohibited, I have no doubt, but the state statute and charge did not give the notice constitutionally required.

       For examples of recent statutes regulating public displays, see Ariz. Rev. Stat. Ann. § 13-537 (Supp. 1971-1972); N. Y. Penal Law §§245.10-245.11 (Supp. 1971-1972).

       Under such circumstances, where the very method of display may thrust isolated scenes on the public, the Roth v. United States, 354 U. S. 476, 489 (1957), requirement that the materials be “taken as a whole” has little relevance. For me, the First Amendment must be treated in this context as it would in a libel action: if there is some libel in a book, article, or speech we do not average the tone and tenor of the whole; the libelous part is not protected.


author: Per Curiam.

text:
    WILLIS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA
    No. 70-5344.
    Argued February 28, 1972
    Decided March 20, 1972

      E. Freeman Leverett argued the cause and filed a brief for petitioner.

      A. Felton Jenkins, Jr., argued the cause for respondent. With him on the brief was Woodrow W. Lavender.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

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


author: Per Curiam. Mr. Chief Justice Burger, Mr. Justice Rehnquist,

text:
    CRUZ v. BETO, CORRECTIONS DIRECTOR
    No. 71-5552.
    Decided March 20, 1972
   Per Curiam.

The complaint, alleging a cause of action under 42 U. S. C. § 1983, states that Cruz is a Buddhist, who is in a Texas prison. While prisoners who are members of other religious sects are allowed to use the prison chapel, Cruz is not. He shared his Buddhist religious material with other prisoners and, according to the allegations, in retaliation was placed in solitary confinement on a diet of bread and water for two weeks, without access to newspapers, magazines, or other sources of news. He also alleged that he was prohibited from corresponding with his religious advisor in the Buddhist sect. Those in the isolation unit spend 22 hours a day in total idleness.

Again, according to the allegations, Texas encourages inmates to participate in other religious programs, providing at state expense chaplains of the Catholic, Jewish, and Protestant faiths; providing also at state expense copies of the Jewish and Christian Bibles, and conducting weekly Sunday school classes and religious services. According to the allegations, points of good merit are given prisoners as a reward for attending orthodox religious services, those points enhancing a prisoner’s eligibility for desirable job assignments and early parole consideration. Respondent answered, denying the allegations and moving to dismiss.

The Federal District Court denied relief without a hearing or any findings, saying the complaint was in an area that should be left “to the sound discretion of prison administration.” It went on to say, “Valid disciplinary and security reasons not known to this court may prevent the 'equality’ of exercise of religious practices in prison.” The Court of Appeals affirmed. 445 F. 2d 801.

Federal courts sit not to supervise prisons but to enforce the constitutional rights of all “persons,” including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes “access of prisoners to the courts for the purpose of presenting their complaints.” Johnson v. Avery, 393 U. S. 483, 485; Ex parte Hull, 312 U. S. 546, 549. See also Younger v. Gilmore, 404 U. S. 15, aff’g Gilmore v. Lynch, 319 F. Supp. 105 (ND Cal.). Moreover, racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for “the necessities of prison security and discipline.” Lee v. Washington, 390 U. S. 333, 334. Even more closely in point is Cooper v. Pate, 378 U. S. 546, where we reversed a dismissal of a complaint brought under 42 U. S. C. § 1983. We said: “Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action.” Ibid. The allegation made by that petitioner was that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners.

We said in Conley v. Gibson, 355 U. S. 41, 45-46, that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion, established 600 B. C., long before the Christian era. The First Amendment, applicable to the States by reason of the Fourteenth Amendment, Torcaso v. Watkins, 367 U. S. 488, 492-493, prohibits government from making a law “prohibiting the free exercise” of religion. If the allegations of this complaint are assumed to be true, as they must be on the motion to dismiss, Texas has violated the First and Fourteenth Amendments.

The motion for leave to proceed in forma pauperis is granted. The petition for certiorari is granted, the judgment is vacated, and the cause remanded for a hearing and appropriate findings.

So ordered.

Mr. Justice Blackmun concurs in the result.

Mr. Chief Justice Burger,

concurring in the result.

I concur in the result reached even though the allegations of the complaint are on the borderline necessary to compel an evidentiary hearing. Some of the claims alleged are frivolous; others do not present justiciable issues. There cannot possibly be any constitutional or legal requirement that the government provide materials for every religion and sect practiced in this diverse country. At most, Buddhist materials cannot be denied to prisoners if someone offers to supply them.

Mr. Justice Rehnquist,

dissenting.

Unlike the Court, I am not persuaded that petitioner’s complaint states a claim under the First Amendment, or that if the opinion of the Court of Appeals is vacated the trial court must necessarily conduct a trial upon the complaint.

Under the First Amendment, of course, Texas may neither “establish a religion” nor may it “impair the free exercise” thereof. Petitioner alleges that voluntary services are made available at prison facilities so that Protestants, Catholics, and Jews may attend church services of their choice. None of our prior holdings indicates that such a program on the part of prison officials amounts to the establishment of a religion.

Petitioner is a prisoner serving 15 years for robbery in a Texas penitentiary. He is understandably not as free to practice his religion as if he were outside the prison walls. But there is no intimation in his pleadings that he is being punished for his religious views, as was the case in Cooper v. Pate, 378 U. S. 546 (1964), where a prisoner was denied the receipt of mail about his religion. Cooper presented no question of interference with prison administration of the type that would be involved here in retaining chaplains, scheduling the use of prison facilities, and timing the activities of various prisoners.

None of our holdings under the First Amendment requires that, in addition to being allowed freedom of religious belief, prisoners be allowed freely to evangelize their views among other prisoners. There is no indication in petitioner’s complaint that the prison officials have dealt more strictly with his efforts to convert other convicts to Buddhism than with efforts of communicants of other faiths to make similar conversions.

By reason of his status, petitioner is obviously limited in the extent to which he may practice his religion. He is assuredly not free to attend the church of his choice outside the prison walls. But the fact that the Texas prison system offers no Buddhist services at this particular prison does not, under the circumstances pleaded in his complaint, demonstrate that his religious freedom is being impaired. Presumably prison officials are not obligated to provide facilities for any particular denominational services within a prison, although once they undertake to provide them for some they must make only such reasonable distinctions as may survive analysis under the Equal Protection Clause.

What petitioner’s basic claim amounts to is that because prison facilities are provided for denominational services for religions with more numerous followers, the failure to provide prison facilities for Buddhist services amounts to a denial of the equal protection of the laws. There is no indication from petitioner’s complaint how many practicing Buddhists there are in the particular prison facility in which he is incarcerated, nor is there any indication of the demand upon available facilities for other prisoner activities. Neither the decisions of this Court after full argument, nor those summarily reversing the dismissal of a prisoner’s civil rights complaint have ever given full consideration to the proper balance to be struck between prisoners’ rights and the extensive administrative discretion that must rest with correction officials. I would apply the rule of deference to administrative discretion that has been overwhelmingly accepted in the courts of appeals. Failing that, I would at least hear argument as to what rule should govern.

A long line of decisions by this Court has recognized that the “equal protection of the laws” guaranteed by the Fourteenth Amendment is not to be applied in a precisely equivalent way in the multitudinous fact situations that may confront the courts. On the one hand, we have held that racial classifications are “invidious” and “suspect.” I think it quite consistent with the intent of the framers of the Fourteenth Amendment, many of whom would doubtless be surprised to know that convicts came within its ambit, to treat prisoner claims at the other end of the spectrum from claims of racial discrimination. Absent a complaint alleging facts showing that the difference in treatment between petitioner and his fellow Buddhists and practitioners of denominations with more numerous adherents could not reasonably be justified under any rational hypothesis, I would leave the matter in the hands of the prison officials.

It has been assumed that the dismissal by the trial court must be treated as proper only if the standard of Conley v. Gibson, 355 U. S. 41 (1957), would permit the grant of a motion under Fed. Rule Civ. Proc. 12 (b) (6). I would not require the district court to inflexibly apply this general principle to the complaint of every inmate, who is in many respects in a different litigating posture than persons who are unconfined. The inmate stands to gain something and lose nothing from a complaint stating facts that he is ultimately unable to prove. Though he may be denied legal relief, he will rionetheless have obtained a short sabbatical in the nearest federal courthouse. To expand the availability of such courtroom appearances by requiring the district court to construe every inmate’s complaint under the liberal rule of Conley v. Gibson deprives those courts of the latitude necessary to process this ever-increasing species of complaint.

Finally, a factual hearing should not be imperative on remand if dismissal is appropriate on grounds other than failure to state a claim for relief. It is evident from the record before us that the in forma pauperis complaint might well have been dismissed as “frivolous or malicious,” under the discretion vested in the trial court by 28 U. S. C. § 1915 (d). This power is not limited or impaired by the strictures of Rule 12 (b). Fletcher v. Young, 222 F. 2d 222 (CA4 1955). Although the trial court based its dismissal on 12 (b)(6) grounds, this record would support a dismissal as frivolous.

The State’s answer to the complaint showed that the identical issues of religious freedoms were litigated by another prisoner from the same institution, claiming the same impairment of the practice of the Buddhist religion, which was brought by the attorney employed at the prison to provide legal services for the inmates. It is not clear whether petitioner here was a party to that suit, as he was to many suits filed by his fellow prisoners. If he was, the instant claim may be barred under the doctrine of res judicata. In any event, a prior adjudication of the same claim by another prisoner under identical circumstances would be a substantial factor in a decision to dismiss this claim as frivolous.

In addition, the trial court had before it the dismissal of another of petitioner’s cases filed shortly before the instant action, where the trial judge had been exposed to myriad previous actions, and found them to be “voluminous, repetitious, duplicitous and in many instances deceitful.” Whether petitioner might have raised his claim in these or several other actions in which he joined other prisoner plaintiffs is also proper foundation for a finding that this complaint is “frivolous or malicious.” Whatever might be the posture of this constitutional claim if petitioner had never flooded the courts with repetitive and duplicitous claims, and if it had not recently been adjudicated in an identical proceeding, I believe it could be dismissed as frivolous in the case before us.

       The amended complaint alleges, inter alia:

      “Plaintiff is an inmate of the Texas Department of Corrections and is a member of the Buddhist Churches of America. At the time of filing of this suit, he was incarcerated at the Eastham Unit and has since been transferred to the Ellis Unit. There is a substantial number of prisoners in the Texas Department of Corrections who either are adherents of the Buddhist Faith or who wish to explore the gospel of Buddhism; however, the Defendants have refused in the past, and continue to refuse, Buddhists the right to hold religious services or to disseminate the teachings of Buddha. The Plaintiff has been prevented by the Defendants from borrowing or lending Buddhist religious books and materials and has been punished by said Defendants by being placed in solitary confinement on a diet of bread and water for two weeks for sharing his Buddhist religious material with other prisoners.
      “Despite repeated requests to Defendants for the use of prison chapel facilities for the purpose of holding Buddhist religious services and the denials thereof the Defendants have promulgated customs and regulations which maintain a religious program within the penal system under which:
      “A. Consecrated chaplains of the Protestant, Jewish and Roman Catholic religions at state expense are assigned to various units.
      “B. Copies of the Holy Bible (Jewish and Christian) are distributed at state expense free to all prisoners.
      “C. Religious services and religious classes for Protestant, Jewish and Roman Catholic adherents are held regularly in chapel facilities erected at state expense for ‘non-denominational’ purposes.
      “D. Records are maintained by Defendants of religious participation by inmates.
      “E. Religious participation is encouraged on inmates by the Defendants as necessary steps toward true rehabilitation.
      “F. Points of good merit are given to inmates by the Defendants as a reward for religious participation in Protestant, Jewish and Roman Catholic faiths which enhance on inmates eligibility for promotions in class, job assignment and parole.
      “Because inmates of the Buddhist faith are being denied the right to participate in the religious program made available for Protestant, Jewish and Roman Catholic faiths by the Defendants, Plaintiff and the members of the class he represents are being subjected to an arbitrary and unreasonable exclusion without any lawful justification which invidiously discriminates against them in violation of their constitutional right of religious freedom and denies them equal protection of the laws.”

       We do not suggest, of course, that every religious sect or group within a prison — however few in number — must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, .or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.

       The Court “remand[s] for a hearing and appropriate findings,” ante, this page. But, of course, the only procedural vehicle for making such findings in this civil litigation would be the trial to which any civil litigant is entitled, inasmuch as this Court has never dealt with the special procedural problems presented by prisoners’ civil suits. See Fed. Rules Civ. Proc.

         Haines v. Kerner, 404 U. S. 519 (1972); Younger v. Gilmore, 404 U. S. 15 (1971); Houghton v. Shafer, 392 U. S. 639 (1968); Lee v. Washington, 390 U. S. 333 (1968); Cooper v. Pate, 378 U. S. 546 (1964).

         Douglas v. Sigler, 386 F. 2d 684, 688 (CA8 1967); Carey v. Settle, 351 F. 2d 483 (CA8 1965); Carswell v. Wainwright, 413 F. 2d 1044 (CA5 1969); Walker v. Pate, 356 F. 2d 502 (CA7 1966). I do not read Johnson v. Avery, 393 U. S. 483 (1969), which was concerned with the prisoners’ traditional remedy of habeas corpus, to reach the issue of a statutory civil cause of action such as 42 U. S. C. § 1983.

       See generally McGowan v. Maryland, 366 U. S. 420 (1961); Dandridge v. Williams, 397 U. S. 471 (1970); F. S. Royster Guano Co. v. Virginia, 253 U. S. 412 (1920); Levy v. Louisiana, 391 U. S. 68 (1968); Carrington v. Rash, 380 U. S. 89 (1965), as examples of the spectrum of Fourteenth Amendment review standards.

        Loving v. Virginia, 388 U. S. 1 (1967); Korematsu v. United States, 323 U. S. 214 (1944).

       Petitioner (represented by a lawyer who drafted the complaint) alleged that he was excluded from participation in religious programs and that the exclusion was “arbitrary and unreasonable . . . without any lawful justification.” Holding counsel to standards of pleading applied to other prisoners’ claims for relief, conclusions of arbitrariness are insufficient, e. g., Williams v. Dunbar, 377 F. 2d 505 (CA9 1967); United States ex rel. Hoge v. Bolsinger, 311 F. 2d 215 (CA3 1962).

       “The last type of writ-writer to be discussed writes writs for economic gain. This group is comprised of a few unscrupulous manipulators who are interested only in acquiring from other prisoners money, cigarettes, or merchandise purchased in the inmate canteen. Once they have a ‘client’s’ interest aroused and determine his ability to pay, they must keep him on the ‘hook.’ This is commonly done by deliberately misstating the facts of his case so that it appears, at least on the surface, that the inmate is entitled to relief. The documents drafted for the client cast the writ-writer in the role of a sympathetic protagonist. After reading them, the inmate is elated that he has found someone able to present his case favorably. He is willing to pay to maintain the he that has been created for him.” Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 348-349 (1968).
      “When decisions do not help a writ-writer, he may employ a handful of tricks which damage his image in the state courts. Some of the not too subtle subterfuges used by a small minority of writ-writers would tax the credulity of any lawyer. One writ-writer simply made up his own legal citations when he ran short of actual ones. In one action against the California Adult Authority involving the application of administrative law, one writ-writer used the following citations: Aesop v. Fables, First Baptist Church v. Sally Stanford, Doda v. One Forty-four Inch Chest, and Dogood v. The Planet Earth. The references to the volumes and page numbers of the nonexistent publications were equally fantastic, such as 901 Penal Review, page 17,240. To accompany each case, he composed an eloquent decision which, if good law,, would make selected acts of the Adult Authority unconstitutional. In time the ‘decisions’ freely circulated among other writ-writers, and several gullible ones began citing them also.” Id., at 355.

       “[Temporary relief from prison confinement is always an alluring prospect, and to the hardened criminal the possibility of escape lurks in every excursion beyond prison walls.” Price v. Johnston, 159 F. 2d 234, 237 (CA9 1947).

       Cf. Price v. Johnston, 334 U. S. 266, 284-285 (1948), giving to the courts of appeals the necessary discretion to determine when prisoners should be allowed to argue their habeas corpus appeals in person:
      “If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument, and that his presence in the courtroom may be secured without undue inconvenience or danger, the court would be justified in issuing the writ.”
      Here, the question is whether prisoners can in every case be permitted to file a complaint, conduct the full range of pretrial discovery, and commence a trial (including presumably trial by jury) at which he and other prisoners will appear as witnesses. The summary reversal effected here encourages such a result without permitting the district courts to exercise the type of discretion permitted in Price and without providing any guidance for their accommodation of the special problems of prisoner litigation with a fair determination of such complaints under 42 U. S. C. § 1983 as are rightfully filed.

        Reece v. Washington, 310 F. 2d 139 (CA9 1962); Conway v. Oliver, 429 F. 2d 1307 (CA9 1970).

       R. 30.