author: Me. Chief Justice Buegee Mr. Justice Stevens,

text:
    MOODY v. DAGGETT
    No. 74-6632.
    Argued October 12, 1976
    Decided November 15, 1976

      Phylis Skloot Bamberger, by appointment of the Court, 425 U. S. 932, argued the cause and filed briefs for petitioner.

      Frank H. Easterbrook argued the cause for respondent pro hac vice. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Jerome M. Feit, and George S. Kopp.

      Briefs of amici curiae urging affirmance were filed by Andrew P. Miller, Attorney General, and Linwood T. Wells, Jr., Assistant Attorney General, for the Commonwealth of Virginia; and by R. A. Ashley, Jr., Attorney General, Robert E. Kendrick, Deputy Attorney General, and David L. Raybin, Assistant Attorney General, for the State of Tennessee, joined by the Attorneys General for their respective States as follows: Wayne L. Kidwell of Idaho, William F. Hyland of New Jersey, Jim Guy Tucker of Arkansas, Evelle J. Younger of California, R. Lee Johnson of Oregon, Francis B. Burch, of Maryland, David R. McLeod of South Carolina, Paul L. Douglas of Nebraska, Robert F. Stephens of Kentucky, Rufus L. Edmisten of North Carolina, William J. Brown of Ohio, and William J. Scott of Illinois.

   Me. Chief Justice Buegee

delivered the opinion of the Court.

We granted certiorari in this case to decide whether a federal parolee imprisoned for a crime committed while on parole is constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant is issued and lodged with the institution of his confinement but not served on him.

(1)

In 1962 petitioner was convicted in the United States District Court for the District of Arizona of the crime of rape on an Indian reservation, in violation of 18 U. S. C. § 1153. There was no appeal, and petitioner received a 10-year prison sentence. He was paroled in 1966 with almost six years remaining to be served. While on parole, petitioner shot and killed two persons on the Fort Apache Indian Reservation. He was convicted on a guilty plea of manslaughter as to one victim and second-degree murder as to the other, for violations of 18 U. S. C. § 1153; he received concurrent 10-year sentences for these two offenses. These crimes constituted obvious violations of the terms of petitioner’s 1966 parole. See 18 U. S. C. § 4203 (a) (1970 ed. and Supp. Y).

Soon after petitioner’s incarceration for the two homicides, the United States Board of Parole issued but did not execute a parole violator warrant; this was lodged with prison officials as a “detainer.” Petitioner requested the Board to execute the warrant immediately so that any imprisonment imposed for violation of his earlier parole under the rape conviction could run concurrently with his 1971 homicide sentences. The Board replied that it intended to execute the warrant only upon petitioner’s release from his second sentence. At its 1974 annual review of petitioner’s case, the Board reaffirmed its decision to allow the warrant to remain unexecuted.

Relying on Morrissey v. Brewer, 408 U. S. 471 (1972), petitioner began this federal habeas corpus action in January 1975, seeking dismissal of the parole violator warrant on the ground that he had been denied a prompt hearing at which the pending parole revocation issues could be aired.

The District Court dismissed the petition without awaiting a responsive pleading, stating:

“■[A] parole revocation hearing is not required until the parole violator warrant has been executed. The parole board is under no obligation to execute the warrant inasmuch as petitioner has been in custody on his 1971 manslaughter [and murder] sentence[s] since the time the warrant was issued and filed as a detainer against him.”

The Court of Appeals affirmed, relying on its earlier holding in Small v. Britton, 500 F. 2d 299 (CA10 1974), in which that court had held that an incarcerated parolee is deprived of no liberty interest by the lodging of a detainer against him, and is thus entitled to no due process safeguards unless and until the parole violator warrant is actually executed.

(2)

The Parole Commission and Reorganization Act, Pub. L. 94-233, 90 Stat. 219 et seq., was enacted shortly after we granted certiorari. The Act renamed the Board the Parole Commission and made other changes in federal parole procedures, principally to codify the Board’s existing practices. Throughout the progress of this case below, however, parole revocation procedures were controlled by the former statutes, 18 U. S. C. §§ 4205 and 4207. Under them, and the Board’s own regulations, 28 CFR § 2.53 (1975), it was the Board’s practice to issue a parole violator warrant as a matter of course whenever a federal parolee was convicted of a new offense. Under the former statute and regulations, if the subsequent sentence called for incarceration the warrant was lodged at the institution of confinement as a detainer, for possible later service. A parolee so confined was then notified of the issuance of the unserved warrant and given the opportunity to make a written response. Upon receipt of the response the Board was authorized, in its discretion, to conduct a dispositional interview designed to get the facts relevant to its revocation decision. The parolee could retain counsel for the interview and call witnesses. In lieu of an interview, the Board in its discretion could review the parolee’s case based on the record and the written response.

After review — or interview — the Board had three options for disposing of its parole violator warrant:

(a) It could execute the warrant immediately and take the parolee into custody. If parole was revoked at that stage, the remainder of the parolee’s original federal sentence, reinstated by the parole revocation, would run concurrently with the subsequent sentence from the time of execution of the warrant. 18 U. S. C. § 4205. Execution of the warrant deprived the parolee of any good-time credits he might have previously earned on his original sentence under 18 U. S. C. § 4161, and of credit for the time spent while on parole. 18 U. S. C. § 4205; 28 CFR § 2.51 (1975).

(b) The Board’s second option was to dismiss the warrant and detainer altogether, which operated as a decision not to revoke parole, and under which the parolee retained both his good-time credit and credit for the time spent on parole. Presumably dismissal of the warrant would reflect a Board decision that the violation of conditions of parole was not of such gravity as to justify revocation.

(c) Third, the Board was free to defer a final decision on parole revocation until expiration of the subsequent sentence, as it elected to do in this case; under this third option, the Board was authorized to execute the warrant, take the parolee into custody immediately upon his release, and then conduct a revocation hearing. Deferral of decision while permitting the warrant to stand unexecuted would operate to allow the original sentence to remain in the status it occupied at the time of the asserted parole violation, 18 U. S. C. § 4205; it would not deprive the parolee either of his good time or of the time spent on parole.

Respondent represents that the Board’s general practice, before passage of the 1976 Act, was to defer decision in order to have before it the parolee’s institutional record during his confinement on the subsequent offense. That record would obviously be highly relevant to the parole revocation decision. Annual reviews of the status of every parolee to whom it had not granted a dispositional interview were conducted under the former statute.

The 1976 Act and accompanying regulations, 28 CFR § 2.1 et seg. (1976), incorporate the former procedures with few modifications. Under current law, the Parole Commission reviews the parole violator warrant within 180 days of its issuance, 18 U. S. C. § 4214 (b)(1) (1976 ed.); the parolee, after notification of the impending review, is now entitled to assistance of appointed counsel, if requested, in preparing his written response. 18 U. S. C. § 4214 (a) (2) (B) (1976 ed.). The 1976 Act also abolishes the annual status review formerly required. Previously it was general practice to defer execution of the warrant to completion of the subsequent sentence. It is now firm Commission policy that unless “substantial mitigating circumstances” are shown, the parole violator term of a parolee convicted of crime is to run consecutively to the sentence imposed for the subsequent offense. 28 CFR § 2.47 (c) (1976).

Petitioner asserts protected liberty interests in both the length and conditions of his confinement. Those interests, he argues, are disregarded in several respects by issuance against him of an unexecuted parole violator warrant, which bars him from serving his 1962 rape conviction sentence concurrently with his 1971 homicide sentences, retards his parole eligibility on the later convictions, and adversely affects his prison classification status, He argues that lack of a prompt hearing risks the loss of evidence in mitigation which might induce the Board not to revoke his parole. Respondent’s position is that whatever process may eventually be due petitioner, the mere issuance of a parole violator warrant works no present deprivation of protected liberty sufficient to invoke due process protection.

(3)

In Morrissey, we held that the conditional freedom of a parolee generated by statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which may not be terminated absent appropriate due process safeguards. The revocation hearing mandated by Morrissey is bottomed on the parallel interests of society and the parolee in establishing whether a parole violation has occurred and, if so, whether under all the circumstances the quality of that violation calls for parole revocation. The issue before us here, however, is not whether a Morrissey-type hearing will ever be constitutionally required in the present case, but whether a hearing must be held at the present time, before the parolee is taken into custody as a parole violator. We hold that there is no requirement for an immediate hearing.

Petitioner’s present confinement and consequent liberty loss derive not in any sense from the outstanding parole violator warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board’s intent to defer consideration of parole revocation to a later time. Though the gravity of petitioner’s subsequent crimes places him under a cloud, issuance of the warrant was not a determination that petitioner’s parole under his 1962 rape conviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect. Indeed, in holding that “[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody,” Morrissey, 408 U. S., at 488, we established execution of the warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon parole revocation. This is a functional designation, for the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant. Cf. 18 U. S. C. § 4206; 18 U. S. C. § 4213 (d) (1976 ed.).

The other injuries petitioner claims to suffer either do not involve a loss of protected liberty or have not occurred by reason of the warrant and detainer. His real complaint is that he desires to serve his sentence for the 1962 rape conviction concurrently with his sentences for two 1971 homicides. But, as we have noted, even after completion of the homicide sentences the Commission retains full discretion to dismiss the warrant or decide, after hearing, that petitioner’s parole need not be revoked. If revocation is chosen, the Commission has power to grant, retroactively, the equivalent of concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentence. See 18 U. S. C. §§ 4211, 4214 (d) (1976 ed.); 28 CFR §§ 2.21, 2.52 (c)(2) (1976). Thus, deferral of the revocation decision does not deprive petitioner of any such opportunity; nothing in the statute or regulations gives him any “right” to force the decision of the Commission at this time.

Petitioner also argues that issuance of a parole violator warrant, without more, diminishes his opportunity for parole on his intervening sentence. Assuming for the moment that granting of parole is a protected liberty interest which this warrant impinges, this argument fails to take into account that here the same Commission which will consider petitioner’s parole under his 1971 homicide convictions will decide whether to revoke parole granted under the 1962 conviction. The statutory hearing to which petitioner will be entitled upon his application for release on parole will give him the same full opportunity to persuade the Commission that he should be released from federal custody as would an immediate hearing on the parole violator warrant. Whether different issues would be presented by the prospect of adverse action by different and autonomous parole authorities, we need not consider.

Finally, there is a practical aspect to consider, for in cases such as this, in which the parolee admits' or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified notwithstanding the violation. This is uniquely a “prediction as to the ability of the individual to live in society without committing antisocial acts.” Morrissey, supra, at 480. In making this prophecy, a parolee’s institutional record can be perhaps one of the most significant factors. Forcing decision immediately after imprisonment would not only deprive the parole authority of this vital information, but since the other most salient factor would be the parolee’s recent convictions, here a double homicide, a decision to revoke parole would often be foreordained. Given the predictive nature of the hearing, it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate — at the expiration of the parolee’s intervening sentence.

Accordingly, and without regard to what process may be due petitioner before his parole may be finally revoked, we hold that he has been deprived of no constitutionally protected rights simply by issuance of a parole violator warrant. The Commission therefore has no constitutional duty to provide petitioner an adversary parole hearing until he is taken into custody as a parole violator by execution of the warrant.

Affirmed.

Mr. Justice Stevens,

with whom Mr. Justice Brennan joins,

dissenting.

The Court holds that the lodging of a detainer with an institution in which a parolee is confined does not have the kind of impact on his custodial status that requires a due process hearing. That holding does not answer the question which I regard as critical in this case. For it is clear that sooner or later a parole revocation hearing will be held; the question is whether the timing of that hearing is an element of the procedural fairness to which the parolee is constitutionally entitled. I am persuaded that it is.

1 start from the premise that parole revocation is a deprivation of liberty within the meaning of the Fifth and Fourteenth Amendments and therefore must be preceded by due process. The Court so held in Morrissey v. Brewer, 408 U. S. 471, 481-483. In that case the revocation resulted in the return of the parolee to prison whereas in this case the parolee is already incarcerated for a separate offense. But in both situations the revocation affects the length of his confinement and therefore may result in a “grievous loss” of liberty. Accordingly, it is clear- — and I do not understand the Court to disagree, see ante, at 85-86, 89 — that the parolee’s constitutional right to have the revocation hearing conducted fairly is not affected by his custodial status. Moreover, since the parole revocation process begins when the Parole Commission issues the revocation warrant, it plainly follows that the constitutional protections afforded the parolee attach at that time. The question, then, is whether the parolee’s right to a fair hearing includes any right to have the hearing conducted with reasonable dispatch.

It is apparently the position of the Parole Commission that it has no obligation to go forward with the revocation hearing until after the parolee has completed the service of his sentence for the second offense. It may therefore wait as long as 10 or 20 years after commencing the revocation process by issuing a warrant. This position, I submit, can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing. Precedent, tradition, and reason require rejection of that assumption.

In Klopfer v. North Carolina, 386 U. S. 213, 226, the Court held that the States were required by the Due Process Clause of the Fourteenth Amendment to provide a defendant with a prompt hearing because the right to a speedy trial “is one of the most basic rights preserved by our Constitution.” That holding rested in part on common-law tradition of such a fundamental nature as to be reflected in the Magna Carta itself. In that case, Mr. Justice Harlan, though disagreeing with the view that the “speedy trial” provision of the Sixth Amendment was directly applicable to the States, concurred with the conclusion that a state procedure “which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment.” Id., at 227.

The common-law tradition that supports both the Court’s holding and Mr. Justice Harlan’s separate concurrence in Klopfer, also requires respect for a parolee’s interest in the reasonably prompt disposition of charges pending against him, regardless of whether or not he is incarcerated.

This Court has already held that present incarceration for one offense does not deprive an inmate of his right to a prompt trial on a second charge. Smith v. Hooey, 393 U. S. 374; Strunk v. United States, 412 U. S. 434. Moreover, the Court has made it clear that the constitutional protection applies not only to the determination of guilt but also to the discretionary decision on what disposition should be made of the defendant. This point was squarely decided with respect to parole revocation in Morrissey v. Brewer, And in Pollard v. United States, 352 U. S. 354, the Court, though rejecting the particular claim, recognized that a defendant’s right to a speedy trial included a right to a prompt sentencing determination. The entire Court subscribed to the view that delay in regard to disposition “must not be purposeful or oppressive.” Id., at 361. That view contrasts sharply with the Parole Commission’s conscious policy of delaying parole revocation decisions under these circumstances.

Those holdings recognize the defendant’s legitimate interest in changing the uncertainty associated with a pending charge into the greater certainty associated with its disposition. In the words of a former director of the Federal Bureau of Prisons that were quoted by the Court in Smith, supra, at 379, the “ ‘anxiety and concern’ ” which accompany unresolved charges have as great an impact on the incarcerated as on those at large.

“[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into . . . custody ... at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.”

Although those comments were directed at the prisoner’s right to a prompt trial on a second criminal charge, they are also applicable to the incarcerated parolee’s interest in a reasonably prompt revocation hearing.

Under the respondent’s position, the petitioner’s hearing may come as much as 10 years after his intervening conviction. It is unlikely that such a delayed hearing would focus on the question whether facts in mitigation existed at the time of commission of the intervening offense; rather, the primary inquiry would no doubt be directed at the question whether petitioner made satisfactory institutional progress in the service of his intervening sentence to justify his return to society. That is the sort of inquiry that would in any event be appropriate in a parole release hearing. In short, a prolonged delay will inevitably change the character of the revocation hearing. If unlimited delay is permitted, the procedural safeguards which were fashioned in Morrissey to assure the parolee a fair opportunity to present facts in mitigation and to challenge the government’s assertions will have become meaningless. Delay will therefore violate the “fundamental requirement of due process” — “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U. S. 319, 333, quoting Armstrong v. Manzo, 380 U. S. 545, 552.

Petitioner argues that the detainer itself is the source of his grievous loss which mandates a hearing. That is not my view. In my judgment the detainer is comparable to an arrest or an indictment which identifies a time when it is clear that the government has a basis for going forward with appropriate proceedings and from which the right to a speedy determination accrues. Since I believe the right to orderly procedure leading to a reasonably prompt decision is a fundamental attribute of due process, I cannot accept the conclusion that the right is vindicated by simply lodging a detainer and letting it remain outstanding for year after year while the prisoner’s interest in knowing where he stands may be entirely ignored.

I therefore respectfully dissent.

       This constitutional issue has divided the Courts of Appeals. Three of the Circuits have concluded that a parolee convicted of crime committed while on parole is entitled to a due process hearing promptly upon issuance of the parole violator warrant and detainer. Jones v. Johnston, 175 U. S. App. D. C. 151, 534 F. 2d 353 (1976), cert. pending sub nom. Sigler v. Byrd, No. 76-355; United States ex rel. Hahn v. Revis, 520 F. 2d 632 (CA7 1975), mandate recalled, No. 74-1057 (Aug. 27,1975) ; Cleveland v. Ciccone, 517 F. 2d 1082 (CA8 1975). Other Circuits have held that no due process requirements attach at this time. Reese v. U. S. Bd. of Parole, 530 F. 2d 231 (CA9 1976), cert. pending sub nom. Reese v. U. S. Parole Comm’n, No. 75-6703; Gaddy v. Michael, 519 F. 2d 669 (CA4 1975), cert. pending, No. 75-5215; Orr v. Saxbe, No. 74-341 (MD Pa., Nov. 27, 1974), aff’d without opinion, 517 F. 2d 1399 (CA3 1975), cert. pending sub nom. Orr v. Levi, No. 75-5594; Colangelo v. U. S. Bd. of Parole, No. 74-251 (WD Ohio, Dec. 11, 1974), aff’d without opinion, 517 F. 2d 1404 (CA6 1975); Small v. Britton, 500 F. 2d 299 (CA10 1974); Cook v. U. S. Attorney General, 488 F. 2d 667 (CA5), cert. denied, 419 U. S. 846 (1974).

       A detainer in this context is an internal administrative mechanism to assure that an inmate subject to an unexpired term of confinement will not be released from custody until the jurisdiction asserting a parole violation has had an opportunity to act — in this case by taking the inmate into custody or by making a parole revocation determination. When two autonomous jurisdictions are involved, as for example when a federal detainer is .placed against an inmate of a state institution, a detainer is a matter of comity.

       Civ. Action No. 75-28-C3 (Kan., Jan. 29,1975).

       The Commission’s newly promulgated rule, 28 CFR §2.57 (1976), validates any order of the Board entered prior to May 14, 1976 (the Act’s effective date).

       Title 18 U. S. C. § 4205 provided:
      “A warrant for the retaking of any United States prisoner who has violated his parole may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
      Title 18 U. S. C. § 4207 provided:
      “A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
      “The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
      “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.”

       “(a) In those instances where the prisoner is serving a new sentence in an institution, the warrant may be placed there as a detainer. Such prisoner shall be advised that he may communicate with the Board relative to disposition of the warrant, and may request that it be withdrawn or executed so his violator term will run concurrently with the new sentence. Should further information be deemed necessary, the Regional Director may designate a hearing examiner panel to conduct a dispositional interview at the institution where the prisoner is confined. At such dispositional interview the prisoner may be represented by counsel of his own choice and may call witnesses in his own behalf, provided he bears their expenses. He shall be given timely notice of the dispositional interview and its procedure.
      “(b) Following the dispositional review the Regional Director may:
      “(1) Let the detainer stand
      “(2) Withdraw the detainer and close the case if the expiration date has passed;
      “(3) Withdraw the detainer and reinstate to supervision; thus permitting the federal sentence time to run uninterruptedly from the time of his original release on parole or mandatory release.
      “(4) Execute warrant, thus permitting the sentence to run from that point in time. If the warrant is executed, a previously conducted dispositional interview may be construed as a revocation hearing.
      “(c) In all cases, including those where a dispositional interview is not conducted, the Board shall conduct annual reviews relative to the disposition of the warrant. These decisions will be made by the Regional Director. The Board shall request periodic reports from institution officials for its consideration.”

       In the present case, where petitioner has already been convicted of and incarcerated on a subsequent offense, there is no need for the preliminary hearing which Morrissey requires upon arrest for a parole violation. This is so both because the subsequent conviction obviously gives the parole authority “probable cause or reasonable ground to believe that the . . . parolee has committed acts that would constitute a violation of parole conditions,” 408 U. S., at 485, and because issuance of the warrant does not immediately deprive the parolee of liberty. The 1976 Act calls for no preliminary hearing in such cases. 18 U. S. C. § 4214 (b) (1) (1976 ed.); see 28 CFR § 2.48 (f) (1976).

       Congress has provided a statutory right to a parole revocation hearing along Morrissey lines even where the parolee "knowingly and intelligently admits violation” of the terms of his parole, or has been convicted of a crime committed while on parole and is therefore barred from relitigating facts constituting a parole violation. 18 U. S. C. §§ 4214 (c), (d) (1976 ed.); see Morrissey, supra, at 490. At the hearing the parolee may present evidence addressed to whether, given his admitted violation, circumstances exist justifying his continued release on parole. 28 CFR §2.50 (1976). Petitioner will be entitled to this statutory hearing within 90 days after execution of the warrant. 18 U. S. C. § 4214 (o) (1976 ed).

       Petitioner further claims that evidence of mitigation may be lost if the revocation hearing is not held promptly, but he makes no claim that there is additional evidence in his case which may be vitiated by a delay. Had such claims been made, the Commission has the power, as did the Board before it, to conduct an immediate hearing at which petitioner can preserve his evidence. 18 U. S. C. § 4214 (b) (2) (1976 ed.); 28 CFR §2.47 (1976).
      Petitioner also argues that the pending warrant and detainer adversely affect his prison classification and qualification for institutional programs. We have rejected the notion that every state action carrying adverse consequences for prison inmates automatically activates a due process right. In Meachum v. Fano, 427 U. S. 215 (1976), for example, no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visited a “grievous loss” upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U. S. C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process.

       In Wolff v. McDonnell, 418 U. S. 539, 558, the Court held that loss of “good-time credits” was a deprivation of liberty which required due process protections because the loss of credits could lengthen confinement.
      “We think a person’s liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 123 (1889). Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.” Ibid.

      Similarly, as the Seventh Circuit held in United States ex rel. Miller v. Twomey, 479 F. 2d 701, 715 (1973): “The time when an inmate may enjoy liberty is directly affected by the disallowance of statutory good time. . . . The cancellation of such credits thus inflicts the same kind of ‘grievous loss’ on the prisoner as does the revocation of parole [citing Morrissey].”

       The status of the incarcerated parolee is comparable to that of a defendant on trial for one offense who is already imprisoned for another. Cf. Smith v. Hooey, 393 U. S. 374; Strunk v. United States, 412 U. S. 434, 439.

       The issuance of a parole revocation warrant suspends the running of a convict’s sentence and parole until final disposition of the parole violation charges may be made by the Commission. 28 CFR § 2.44 (d) (1976). The issuance of the warrant must be considered the commencement of the parole revocation process, since suspension of the running of a parolee’s sentence could not otherwise be justified. Thus, the due process protections, which the Court has held apply to the parole revocation process, Morrissey, attach at that time.

       The majority suggests that under the prior law, which has governed this case since its filing, the Parole Board if it revoked parole as to a parolee while he was incarcerated on an intervening sentence, would be required to make the service of both sentences concurrent. See ante, at 83-84, citing 18 U. S. C. § 4205. I do not read § 4205 as placing such a restriction on the Board’s discretion, but even if it did, such a statutory provision does not affect the constitutional question. Moreover, whatever the effect of § 4205, this statute has been overridden by the Parole Commission and Reorganization Act, Pub. L. 9A-233, 90 Stat. 219. Thus, 18 U. S. C. § 4210 (b) (2) (1976 ed.) now expressly allows the Commission to determine whether the two sentences will be served “concurrently or consecutively.”

       As the Court noted, 386 U. S., at 224, the Magna Carta as interpreted by Sir Edward Coke guaranteed to all speedy justice.
      “In [Coke’s] explication of Chapter 29 of the Magna Carta, he wrote that the words ‘We will sell to no man, we will not deny or defer to any man either justice or right’ had the following effect:
      “ ‘And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.’ ” Quoting E. Coke, 2 Institutes 55 (Brooke, 5th ed., 1797).
      The opinion in Klopfer, 386 U. S., at 225-226, n. 21, also notes that the Massachusetts Constitution of 1780, Part I, Art. XI, provided:
      “Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”

       “To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of The Chief Justice.” 386 U. S., at 227.

       “There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing . . . must lead to a final evaluation of any contested relevant facte and consideration of whether the facts as determined warrant revocation.” 408 U. S., at 487-488.

       The prisoner also has an interest in disposing of detainers because they may affect the conditions and extent of his custody. “[U]nder procedures now widely practiced, the duration of [a prisoner’s] present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” Smith v. Hooey, 393 U. S., at 378.
      Moreover, the Court in Smith quoted a former director of the Federal Bureau of Prisons as writing:
      “ ‘Today the prisoners with detainers are 'evaluated individually but there remains a tendency to consider them escape risks and to assign them accordingly. In many instances this evaluation and decision may be correct, for the detainer can aggravate the escape potentiality of a prisoner.’ Bennett, ‘The Last Full Ounce,’ 23 Fed. Prob. No. 2, p. 20, at 21 (1959).” Id., at 379 n. 8.
      Under present Bureau of Prisons’ policy, a detainer will not preclude a more lenient classification of a prisoner, but “the seriousness of a detainer must be considered when custody reductions are considered.” Bureau of Prisons, Policy Statement 7300.112 ¶4 (Apr. 8, 1976). See also Bureau of Prisons, Policy Statement 7500.72 ¶4 (May 8, 1972).
      It should be noted that if a prisoner would rather face the uncertainty and restrictions which might occur because of an outstanding detainer in hopes that the Commission would prove more lenient at a later revocation hearing, he could certainly waive his right to a prompt hearing.

       The Bureau of Prisons recognizes the detriments created by allowing detainers to remain unexecuted.
      “Because uncertainty as to status can have an adverse effect on our efforts to provide offenders with correctional services, we should encourage detaining authorities to dispose of pending untried charges against offenders in federal custody.
      “The casework staff at all institutions may cooperate with and give assistance to offenders in their efforts to have detainers against them disposed of, either by having the charges dropped, by restoration to probation, or parole status or by arrangement for concurrent service of the state sentence.
      “The presence of a detainer oftentimes has a restricting effect on efforts to involve the offender in correctional programs. For this reason, caseworkers at federal institutions are expected to assist offenders in their efforts to have detainers disposed of.” Bureau of Prisons, Policy Statement 7500.14A (Jan. 7, 1970).

       Bennett, The Last Full Ounce, 23 Fed. Prob. No. 2, pp. 20, 21 (1959).

       By emphasizing the fact that the filing of a warrant starts the parole revocation process, I do not mean to imply that the parolee’s right to a prompt revocation hearing should depend upon the filing of a warrant. If the Commission has full notice of a parolee’s intervening conviction, it should not be permitted to wait until the termination of the intervening sentence to act. Compare United States v. Marion, 404 U. S. 307 (holding that due process places some restraints on government delay in bringing an indictment) with Barker v. Wingo, 407 U. S. 514 (a speedy trial case).

       I do not imply that the parole authorities actually discharge their responsibilities in such a heartless manner. But I cannot accept a constitutional holding that would permit them to do so.
      I should also make clear that I would not prescribe any inflexible rule that the hearing must always take place within a fixed period. Nor would I require that the prisoner’s interest in a reasonabljbprompt determination of his status always mandate a personal appearance either at the place of his incarceration or at the place where the parole board normally sits. If justification for the revocation is established by a new conviction, there would seldom be need for a hearing on the discretionary aspects of revocation — certainly not unless strong mitigating circumstances were identified. But the fact that the prisoner has only a slight chance of prevailing on the merits does not justify a total rejection of his interest in a prompt disposition. Moreover, if, as respondent contends, delay will sometimes be in the parolee’s best interest, the parolee could always waive his right to a prompt hearing.


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice Stevens,

license: Public Domain

text:
    ESTELLE, CORRECTIONS DIRECTOR, et al. v. GAMBLE
    No. 75-929.
    Argued October 5, 1976
    Decided November 30, 1976

      Bert W. Pluymen, Assistant Attorney General of Texas, argued the cause for petitioners pro hac vice. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Joe B. Dibrell, Jr., Assistant Attorney General.

      Daniel K. Hedges, by appointment of the Court, 425 U. S. 932, argued the cause and filed a brief for respondent pro hac vice.

   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent J. W. Gamble, an inmate of the Texas Department of Corrections, was injured on November 9, 1973, while performing a prison work assignment. On February 11, 1974, he instituted this civil rights action under 42 U. S. C. § 1983, complaining of the treatment he received after the injury. Named as defendants were the petitioners, W. J. Estelle, Jr., Director of the Department of Corrections, H. H. Husbands, warden of the prison, and Dr. Ralph Gray, medical director of the Department and chief medical officer of the prison hospital. The District Court, sua sponte, dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals reversed and remanded with instructions to reinstate the complaint. 516 F. 2d 937 (CA5 1975). We granted certiorari, 424 U. S. 907 (1976).

I

Because the complaint was dismissed for failure to state a claim, we must take as true its handwritten, pro se allegations. Cooper v. Pate, 378 U. S. 546 (1964). According to the complaint, Gamble was injured on November 9, 1973, when a bale of cotton fell on him while he was unloading a truck. He continued to work but after four hours he became stiff and was granted a pass to the unit hospital. At the hospital a medical assistant, “Captain” Blunt, checked him for a hernia and sent him back to his cell. Within two hours the pain became so intense that Gamble returned to the hospital where he was given pain pills by an inmate nurse and then was examined by a doctor. The following day, Gamble saw a Dr. Astone who diagnosed the injury as a lower back strain, prescribed Zactirin (a pain reliever) and Robaxin (a muscle relaxant), and placed respondent on “cell-pass, cell-feed” status for two days, allowing him to remain in his cell at all times except for showers. On November 12, Gamble again saw Dr. Astone who continued the medication and cell-pass, cell-feed for another seven days. He also ordered that respondent be moved from an upper to a lower bunk for one week, but the prison authorities did not comply with that directive. The following week, Gamble returned to Dr. Astone. The doctor continued the muscle relaxant but prescribed a new pain reliever, Febridyne, and placed respondent on cell-pass for seven days, permitting him to remain in his cell except for meals and showers. On November 26, respondent again saw Dr. Astone, who put respondent back on the original pain reliever for five days and continued the cell-pass for another week.

On December 3, despite Gamble's statement that his back hurt as much as it had the first day, Dr. Astone took him off cell-pass, thereby certifying him to be capable of light work. At the same time, Dr. Astone prescribed Febridyne for seven days. Gamble then went to a Major Muddox and told him that he was in too much pain to work. Muddox had respondent moved to “administrative segregation.” On December 5, Gamble wa,s taken before the prison disciplinary committee, apparently because of his refusal to work. When the committee heard his complaint of back pain 'and high blood pressure, it directed that he be seen by another doctor.

On December 6, respondent saw petitioner Gray, who performed a urinalysis, blood test, and blood pressure measurement. Dr. Gray prescribed the drug Ser-Ap-Es for the high blood pressure and more Febridyne for the back pain. The following week respondent again saw Dr. Gray, who continued the Ser-Ap-Es for an additional 30 days. The prescription was not filled for four days, however, because the staff lost it. Respondent went to the unit hospital twice more in December; both times he was seen by Captain Blunt, who prescribed Tiognolos (described as a muscle relaxant). For all of December, respondent remained in administrative segregation.

In early January, Gamble was told on two occasions that he would be sent to the “farm” if he did not return to work. He refused, nonetheless, claiming to be in too much pain. On January 7, 1974, he requested to go on sick call for his back pain and migraine headaches. After an initial refusal, he saw Captain Blunt who prescribed sodium salicylate (a pain reliever) for seven days and Ser-Ap-Es for 30 days. Respondent returned to Captain Blunt on January 17 and January 25, and received renewals of the pain reliever prescription both times. Throughout the month, respondent was kept in administrative segregation.

On January 31, Gamble was brought before the prison disciplinary committee for his refusal to work in early January. He told the committee that he could not work because of his severe back pain and his high blood pressure. Captain Blunt testified that Gamble was in “first class” medical condition. The committee, with no further medical examination or testimony, placed respondent in solitary confinement.

Four days later, on February 4, at 8 a. m., respondent asked to see a doctor for chest pains and “blank outs.” It was not until 7:30 that night that a medical assistant examined him and ordered him hospitalized. The following day a Dr. Heaton performed an electrocardiogram; one day later respondent was placed on Quinidine for treatment of irregular cardiac rhythm and moved to administrative segregation. On February 7, respondent again experienced pain in his chest, left arm, and back and asked to see a doctor. The guards refused. He asked again the next day. The guards again refused. Finally, on February 9, he was allowed to see Dr. Heaton, who ordered the Quinidine continued for three more days. On February 11, he swore out his complaint.

II

The gravamen of respondent’s § 1983 complaint is that petitioners have subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Robinson v. Califor nia, 370 U. S. 660 (1962). We therefore base our evaluation of respondent’s complaint on those Amendments and our decisions interpreting them.

The history of the constitutional prohibition of “cruel and unusual punishments” has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U. S. 153, 169-173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Calif. L. Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe “torture [s] ” and other “bar-bar[ous]” methods of punishment. Id., at 842. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U. S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . .”); In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death . . .”).

Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra, at 171 (joint opinion); Trop v. Dulles, 356 U. S. 86, 100-101 (1958); Weems v. United States, 217 U. S. 349, 373 (1910). The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ,” Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, supra, at 101; see also Gregg v. Georgia, supra, at 172-173 (joint opinion); Weems v. United States, supra, at 378, or which “involve the unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, at 173 (joint opinion); see also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947); Wilkerson v. Utah, supra, at 136.

These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or a lingering death,” In re Kemmler, supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. Cf. Gregg v. Georgia, supra, at 182-183 (joint opinion). The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the eommonlaw view that “it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.”

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, at 173 (joint opinion), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardess of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.

This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. In Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), for example, the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction had thwarted the first attempt. Writing for the plurality, Mr. Justice Reed reasoned that the second execution would not violate the Eighth Amendment because the first attempt was an “unforeseeable accident.” Id., at 464. Mr. Justice Frankfurter’s concurrence, based solely on the Due Process Clause of the Fourteenth Amendment, concluded that since the first attempt had failed because of “an innocent misadventure,” id., at 470, the second would not be “ ‘repugnant to the conscience of mankind,’ ” id., at 471, quoting Palko v. Connecticut, 302 U. S. 319, 323 (1937).

Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.

Ill

Against this backdrop, we now consider whether respondent’s complaint states a cognizable § 1983 claim. The handwritten pro se document is to be liberally construed. As the Court unanimously held in Haines v. Kerner, 404 U. S. 519 (1972), a pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears “ 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id., at 520-521, quoting Conley v. Gibson, 355 U. S. 41, 45-46 (1957).

Even applying these liberal standards, however, Gamble’s claims against Dr. Gray, both in his capacity as treating physician and as medical director of the Corrections Department, are not cognizable under § 1983. Gamble was seen by medical personnel on 17 occasions spanning a three-month period: by Dr. Astone five times; by Dr. Gray twice; by Dr. Heaton three times; by an unidentified doctor and inmate nurse on the day of the injury; and by medical assistant Blunt six times. They treated his back injury, high blood pressure, and heart problems. Gamble has disclaimed any objection to the treatment provided for his high blood pressure and his heart problem; his complaint is “based solely on the lack of diagnosis and inadequate treatment of his back injury.” Response to Pet. for Cert. 4; see also Brief for Respondent 19. The doctors diagnosed his injury as a lower back strain and treated it with bed rest, muscle relaxants, and pain relievers. Respondent contends that more should have been done by way of diagnosis and treatment, and suggests a number of options that were not pursued. Id., at 17, 19. The Court of Appeals agreed, stating: “Certainly an X-ray of [Gamble’s] lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily pain and suffering he was experiencing.” 516 F. 2d, at 941. But the question whether an X-ray — or additional diagnostic techniques or forms of treatment — is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act. The Court of Appeals was in error in holding that the alleged insufficiency of the medical treatment required reversal and remand. That portion of the judgment of the District Court should have been affirmed.

The Court of Appeals focused primarily on the alleged actions of the doctors, and did not separately consider whether the allegations against the Director of the Department of Corrections, Estelle, and the warden of the prison, Husbands, stated a cause of action. Although we reverse the judgment as to the medical director, we remand the case to the Court of Appeals to allow it an opportunity to consider, in conformity with this opinion, whether a cause of action has been stated against the other prison officials.

It is so ordered.

Mr. Justice Blackmun concurs in the judgment of the Court.

Mr. Justice Stevens,

dissenting.

Most of what is said in the Court’s opinion is entirely consistent with the way the lower federal courts have been processing claims that the medical treatment of prison inmates is so inadequate as to constitute the cruel and unusual punishment prohibited by the Eighth Amendment. I have no serious disagreement with the way this area of the law has developed thus far, or with the probable impact of this opinion. Nevertheless, there are three reasons why I am unable to join it. First, insofar as the opinion orders the dismissal of the complaint against the chief medical officer of the prison, it is not faithful to the rule normally applied in construing the allegations in a pleading prepared by an uncounseled inmate. Second, it does not adequately explain why the Court granted certiorari in this case. Third, it describes the State’s duty to provide adequate medical care to prisoners in ambiguous terms which incorrectly relate to the subjective motivation of persons accused of violating the Eighth Amendment rather than to the standard of care required by the Constitution.

I

The complaint represents a crude attempt to challenge the system of administering medical care in the prison where Gamble is confined. Fairly construed, the complaint alleges that he received a serious disabling back injury in November 1973, that the responsible prison authorities were indifferent to his medical needs, and that as a result of that indifference he has been mistreated and his condition has worsened.

The indifference is allegedly manifested, not merely by the failure or refusal to diagnose and treat his injury properly, but also by the conduct of the prison staff. Gamble was placed in solitary confinement for prolonged periods as punishment for refusing to perform assigned work which he was physically unable to perform. The only medical evidence presented to the disciplinary committee was the statement of a medical assistant that he was in first-class condition, when in fact he was suffering not only from the back sprain but from high blood pressure. Prison guards refused to permit him to sleep in the bunk that a doctor had assigned. On at least one occasion a medical prescription was not filled for four days because it was lost by staff personnel. When he suffered chest pains and blackouts while in solitary, he was forced to wait 12 hours to see a doctor because clearance had to be obtained from the warden. His complaint also draws into question the character of the attention he received from the doctors and the inmate nurse in response to his 17 attempts to obtain proper diagnosis and treatment for his condition. However, apart from the medical director who saw him twice, he has not sued any of the individuals who saw him on these occasions. In short, he complains that the system as a whole is inadequate.

On the basis of Gamble’s handwritten complaint it is impossible to assess the quality of the medical attention he received. As the Court points out, even if what he alleges is true, the doctors may be guilty of nothing more than negligence or malpractice. On the other hand, it is surely not inconceivable that an overworked, undermanned medical staff in a crowded prison is following the expedient course of routinely prescribing nothing more than pain killers when a thorough diagnosis would disclose an obvious need for remedial treatment. Three fine judges sitting on the United States Court of Appeals for the Fifth Circuit thought that enough had been alleged to require some inquiry into the actual facts. If this Court meant what it said in Haines v. Kerner, 404 U. S. 519, these judges were clearly right.

Thé Haines test is not whether the facts alleged in the complaint would entitle the plaintiff to relief. Rather, it is whether the Court can say with assurance on the basis of the complaint that, beyond any doubt, no set of facts could be proved that would entitle the plaintiff to relief. The reasons for the Haines test are manifest. A pro se complaint provides an unsatisfactory foundation for deciding the merits of important questions because typically it is inartfully drawn, unclear, and equivocal, and because thorough pleadings, affidavits, and possibly an evidentiary hearing will usually bring out facts which simplify or make unnecessary the decision of questions presented by the naked complaint.

Admittedly, it is tempting to eliminate the meritless complaint at the pleading stage. Unfortunately, this “is another instance of judicial haste which in the long run makes waste," Dioguardi v. Durning, 139 F. 2d 774, 775 (CA2 1944) (Clark, J.), cited with approval in Haines v. Kerner, supra, at 521. In the instant case, if the District Court had resisted the temptation of premature dismissal, the case might long since have ended with the filing of medical records or affidavits demonstrating adequate treatment. Likewise, if the decision of the Fifth Circuit reinstating the complaint had been allowed to stand and the case had run its normal course, the litigation probably would have come to an end without the need for review by this Court. Even if the Fifth Circuit had wrongly decided the pleading issue, no great harm would have been done by requiring the State to produce its medical records and move for summary judgment. Instead, the case has been prolonged by two stages of appellate review, and is still not over: The case against two of the defendants may still proceed, and even the claims against the prison doctors have not been disposed of with finality.

The principal beneficiaries of today’s decision will not be federal judges, very little of whose time will be saved, but rather the “writ-writers” within the prison walls, whose semiprofessional services will be in greater demand. I have no doubt about the ability of such a semiprofessional to embellish this pleading with conclusory allegations which could be made in all good faith and which would foreclose a dismissal without any response from the State. It is unfortunate that today’s decision will increase prisoners’ dependence on those -writ-writers. See Cruz v. Beto, 405 U. S. 319, 327 n. 7 (Rehnquist, J., dissenting).

II

Like the District Court’s decision to dismiss the complaint, this Court’s decision to hear this case, in violation of its normal practice of denying interlocutory review, see R. Stem & E. Gressman, Supreme Court Practice 180 (4th ed. 1969), ill serves the interest of judicial economy.

Frankly, I was, and still am, puzzled by the Court’s decision to grant certiorari. If the Court merely thought the Fifth Circuit misapplied Haines v. Kerner by reading the complaint too liberally, the grant of certiorari is inexplicable. On the other hand, if the Court thought that instead of a pleading question, the case presented an important constitutional question about the State’s duty to provide medical care to prisoners, the crude allegations of this complaint do not provide the kind of factual basis the Court normally requires as a predicate for the adjudication of a novel and serious constitutional issue, see, e. g., Rescue Army v. Municipal Court, 331 U. S. 549, 568-575; Ellis v. Dixon, 349 U. S. 458, 464; Wainwright v. City of New Orleans, 392 U. S. 598 (Harlan, J., concurring). Moreover, as the Court notes, all the Courts of Appeals to consider the question have reached substantially the same conclusion that the Court adopts. Ante, at 106 n. 14. Since the Court seldom takes a case merely to reaffirm settled law, I fail to understand why it has chosen to make this case an exception to its normal practice.

Ill

By its reference to the accidental character of the first unsuccessful attempt to electrocute the prisoner in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, see ante, at 105, and by its repeated references to “deliberate indifference” and the “intentional” denial of adequate medical care, I believe the Court’ improperly attaches significance to the subjective motivation of the defendant as a criterion for determining whether cruel and unusual punishment has been inflicted. Subjective motivation may well determine what, if any, remedy is appropriate against a particular defendant. However, whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it. Whether the conditions in Andersonville were the product of design, negligence, or mere poverty, they were cruel and inhuman.

In sum, I remain convinced that the petition for certiorari should have been denied. It having been granted, T would affirm the judgment of the Court of Appeals. '

       Title 42 U. S. C. § 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       It appears that the petitioner-defendants were not even aware of the suit until it reached the Court of Appeals. Tr. of Oral Arg. 7, 13-15. This probably resulted because the District Court dismissed the complaint simultaneously with granting leave to file it in forma pauperis.

       His complaint states that the bale weighed “6.00 pound.” The Court of Appeals interpreted this to mean 600 pounds. 516 F. 2d 937, 938 (CA5 1975).

       The names and descriptions of the drugs administered to respondent are taken from his complaint. App. A-5 — A-11, and his brief, at 19-20.

       There are a number of terms in the complaint whose meaning is unclear and, with no answer from the State, must remain so. For example, “administrative segregation” is never defined. The Court of Appeals deemed it the equivalent of solitary confinement. 516 F. 2d, at 939. We note, however, that Gamble stated he was in “administrative segregation” when he was in the “32A-7 five building” and “32A20 five building,” but when he was in “solitary confinement,” he was in “3102 five building.”

       The Eighth Amendment provides:
      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
      At oral argument, counsel for respondent agreed that his only claim was based on the Eighth Amendment. Tr. of Oral Arg. 42-43.

       The Amendment also proscribes punishments grossly disproportionate to the severity of the crime, Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion); Weems v. United States, 217 U. S. 349, 367 (1910), and it imposes substantive limits on what can be made criminal and punished, Robinson v. California, 370 U. S. 660 (1962). Neither of these principles is involved here.

       See, e. g., Ala. Code Tit. 45, § 125 (1958); Alaska Stat. § 33.30.050 (1975); Ariz. Rev. Stat. Ann. § 31-201.01 (Supp. 1975); Conn. Gen. Stat. Ann. § 18-7 (1975); Ga. Code Ann. § 77-309 (e) (1973); Idaho Code § 20-209 (Supp. 1976); Ill. Ann. Stat. c. 38, § 103-2 (1970); Ind. Ann. Stat. § 11-1-1.1-30.5 (1973); Kan. Stat. Ann. § 75-5429 (Supp. 1975); Md. Ann. Code Art. 27 § 698 (1976); Mass. Ann. Laws, c. 127, §90A (1974); Mich. Stat. Ann. § 14.84 (1969); Miss. Code Ann. §47-1-57 (1972); Mo. Ann. Stat. §221.120 (1962); Neb. Rev. Stat. §83-181 (1971); N. H. Rev. Stat. Ann. § 619.9 (1974); N. M. Stat. Ann. § 42-2-4 (1972); Tenn. Code Ann. §§41-318, 41-1115, 41-1226 (1975); Utah Code Ann. §§ 64-9-13, 64-9-19, 64-9-20, 64-9-53 (1968); Va. Code Ann.. §§32-81, 32-82 (1973); W. Va. Code Ann. §25-1-16 (Supp. 1976); Wyo. Stat. Ann. § 18-299 (1959).
      Many States have also adopted regulations which specify, in varying degrees of detail, the standards of medical care to be provided to prisoners. See Comment, The Rights of Prisoners to Medical Care and the Implications for Drug-Dependent Prisoners and Pretrial Detainees, 42 U. Chi. L. Rev. 705, 708-709 (1975).
      Model correctional legislation and proposed minimum standards are all in accord. See American Law Institute, Model Penal Code §§ 303.4, 304.5 (1962); National Advisory Commission on Criminal Justice Standards and Goals, Standards on Rights of Offenders, Standard 2.6 (1973); National Council on Crime and Delinquency, Model Act for the Protection of Rights of Prisoners, § 1 (b) (1972); National Sheriffs’ Association, Standards for Inmates’ Legal Rights, Right No. 3 (1974); Fourth United Nations Congress on Prevention of Crime and Treatment of Offenders, Standard Minimum Rules for the Treatment of Prisoners, Rules 22-26 (1955). The foregoing may all be found in U. S. Dept, of Justice, Law Enforcement Assistance Administration, Compendium of Model Correctional Legislation and Standards (2d ed. 1975).

         Spicer v. Williamson, 191 N. C. 487, 490, 132 S. E. 291, 293 (1926).

       See, e. g., Williams v. Vincent, 508 F. 2d 541 (CA2 1974) (doctor’s choosing the “easier and less efficacious treatment” of throwing away the prisoner’s ear and stitching the stump may be attributable to “deliberate indifference . . . rather than an exercise of professional judgment”); Thomas v. Pate, 493 F. 2d 151, 158 (CA7), cert. denied sub nom. Thomas v. Cannon, 419 U. S. 879 (1974) (injection of penicillin with knowledge that prisoner was allergic, and refusal of doctor to treat allergic reaction) ; Jones v. Lockhart, 484 F. 2d 1192 (CA8 1973) (refusal of paramedic to provide treatment); Martinez v. Mancusi, 443 F. 2d 921 (CA2 1970), cert. denied, 401 U. S. 983 (1971) (prison physician refuses to administer the prescribed pain killer and renders leg surgery unsuccessful by requiring prisoner to stand despite contrary instructions of surgeon).

       See, e. g., Westlake v. Lucas, 537 F. 2d 857 (CA6 1976); Thomas v. Pate, supra, at 158-159; Fitzke v. Shappell, 468 F. 2d 1072 (CA6 1972); Hutchens v. Alabama, 466 F. 2d 507 (CA5 1972); Riley v. Rhay, 407 F. 2d 496 (CA9 1969); Edwards v. Duncan, 355 F. 2d 993 (CA4 1966); Hughes v. Noble, 295 F. 2d 495 (CA5 1961).

       See, e. g., Wilbron v. Hutto, 509 F. 2d 621, 622 (CA8 1975); Campbell v. Beto, 460 F. 2d 765 (CA5 1972); Martinez v. Mancusi, supra; Tolbert v. Eyman, 434 F. 2d 625 (CA9 1970); Edwards v. Duncan, supra.

       He noted, however, that “a series of abortive attempts” or “a single, cruelly willful attempt” would present a different case. 329 U. S., at 471.

       The Courts of Appeals are in essential agreement with this standard. All agree that mere allegations of malpractice do not state a claim, and, while their terminology regarding what is sufficient varies, their results are not inconsistent with the standard of deliberate indifference. See Page v. Sharpe, 487 F. 2d 567, 569 (CA1 1973); Williams v. Vincent, supra, at 544 (uses the phrase “deliberate indifference”); Gittlemacker v. Prasse, 428 F. 2d 1, 6 (CA3 1970); Russell v. Sheffer, 528 F. 2d 318 (CA4 1975); Newman v. Alabama, 503 F. 2d 1320, 1330 n. 14 (CA5 1974), cert. denied, 421 U. S. 948 (1975) (“callous indifference”); Westlake v. Lucas, supra, at 860 (“deliberate indifference”); Thomas v. Pate, supra, at 158; Wilbron v. Hutto, supra, at 622 (“deliberate indifference”); Tolbert v. Eyman, supra, at 626; Dewell v. Lawson, 489 F. 2d 877, 881-882 (CA10 1974).

       Tex. Rev. Civ. Stat., Art. 6252-19, §3 (Supp. 1976). Petitioners assured tbe Court at argument that this statute can be used by prisoners to assert malpractice claims. Tr. of Oral Arg. 6.

       Contrary to Mr. Justice Stevens’ assertion in dissent, this case signals no retreat from Haines v. Kerner, 404 U. S. 519 (1972). In contrast to the general allegations in Haines, Gamble’s complaint provides a detailed factual accounting of the treatment he received. By his exhaustive description he renders speculation unnecessary. It is apparent from his complaint that he received extensive medical care and that the doctors were not indifferent to his needs.

       In his complaint, Gamble alleged that he had been placed in administrative segregation and remained there through December and January. At the end of January he was placed in solitary confinement. In an affidavit filed in the Court of Appeals the following December, see n. 8, infra, Gamble alleged that with the exception of one day in which he was taken out of solitary to be brought before the disciplinary committee, he had remained in solitary up to the date of the affidavit.

       According to a state legislative report quoted by the Court of Appeals, the Texas Department of Corrections has had at various times one to three doctors to care for 17,000 inmates with occasional part-time help. 516 F. 2d 937,940-941, n. 1 (1975).

       This poorly drafted complaint attempts to describe conditions which resemble those reported in other prison systems. For instance, a study of the Pennsylvania prison system reported:
      “When ill, the prisoner’s point of contact with a prison’s health care program is the sick-call line. Access may be barred by a guard, who refuses to give the convict a hospital pass out of whimsy or prejudice, or in light of a history of undiagnosed complaints. At sick call the convict commonly first sees a civilian paraprofessional or a nurse, who may treat the case with a placebo without actual examination, history-taking or recorded diagnosis. Even seeing the doctor at some prisons produces no more than aspirin for symptoms, such as dizziness and fainting, which have persisted for years.” Health Law Project, University of Pennsylvania, Health Care and Conditions in Pennsylvania’s State Prisons, in American Bar Association Commission on Correctional Facilities and Services, Medical and Health Care in Jails, Prisons, and Other Correctional Facilities: A Compilation of Standards and Materials 71, 81-82 (Aug. 1974).
      A legislative report on California prisons found:
      “By far, the area with the greatest problem at the hospital [at one major prison], and perhaps at all the hospitals, was that of the abusive doctor-patient relationship. Although the indifference of M. T. A.s [medical technical assistants] toward medical complaints by inmates is not unique at Folsom, and has been reported continuously elsewhere, the calloused and frequently hostile attitude exhibited by the doctors is uniquely reprehensible. . . .
      “Typical complaints against [one doctor] were that he would . . . not adequately diagnose or treat a patient who was a disciplinary problem at the prison . . . .” Assembly Select Committee on Prison Reform and Rehabilitation, An Examination of California’s Prison Hospitals, 60-61 (1972).
      These statements by responsible observers demonstrate that it is far from fanciful to read a prisoner’s complaint as alleging that only pro forma treatment was provided.

       The panel included Mr. Justice Clark, a retired member of this Court, sitting by designation, and Circuit Judges Goldberg and Ainsworth.

       In Haines a unanimous Supreme Court admonished the federal judiciary to be especially solicitous of the problems of the uneducated inmate seeking to litigate on his own behalf. The Court said:
      “Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F. 2d 774 (CA2 1944).” 404 U. S., at 520-521.
      Under that test the complaint should not have been dismissed without, at the very minimum, requiring some response from the defendants. It appears from the record that although the complaint was filed in February, instead of causing it to be served on the defendants as required by Fed. Rule Civ. Proc. 4, the Clerk of the District Court referred it to a magistrate who decided in June that the case should be dismissed before any of the normal procedures were even commenced. At least one Circuit has held that dismissal without service on the defendants is improper, Nichols v. Schubert, 499 F. 2d 946 (CA7 1974). The Court’s disposition of this case should not be taken as an endorsement of this practice since the question was not raised by the parties.

       This is the test actually applied in Haines, for although the Court ordered the complaint reinstated, it expressly “intimatefd] no view whatever on the merits of petitioner’s allegations,” 404 U. S., at 521. It is significant that the Court took this approach despite being pressed by the State to decide the merits. As in this case, the State argued forcefully that the facts alleged in the complaint did not amount to a constitutional violation. (Only in one footnote in its 51-page brief did the State discuss the pleading question, Brief for Respondents 22-23, n. 20, in No. 70-5025, O. T. 1971.) Yet, this Court devoted not a single word of its opinion to answering the argument that no constitutional violation was alleged.

       Thus, Haines teaches that the decision on the merits of the complaint should normally be postponed until the facts have been ascertained. The same approach was taken in Polk Co. v. Glover, 305 U. S. 5, in which the Court reversed the dismissal of a complaint, without intimating any view of the constitutional issues, on “[t]he salutary principle that the essential facts should be determined before passing upon grave constitutional questions . . . .” Id., at 10. See also Borden’s Co. v. Baldwin, 293 U. S. 194, 213 (Cardozo and Stone, JJ., concurring in result). This approach potentially avoids the necessity of ever deciding the constitutional issue since the facts as proved may remove any constitutional question. Alternatively, a more concrete record will be available on which to decide the constitutional issues. See generally Rescue Army v. Municipal Court, 331 U. S. 549, 574-575. Even when constitutional principles are not involved, it is important that “the conceptual legal theories be explored and assayed in the light of actual facts, not as a pleader’s supposition,” so that courts may avoid “elucidating legal responsibilities as to facts which may never be.” Shull v. Pilot Life Ins. Co., 313 F. 2d 445, 447 (CA5 1963).

       In an affidavit filed in the Court of Appeals, Gamble states that he has been transferred to another prison, placed in solitary confinement, and denied any medical care at all. These conditions allegedly were continuing on December 3, 1974, the date of the affidavit. The Court of Appeals apparently considered these allegations, as shown by a reference to “the fact that [Gamble] has spent months in solitary confinement without medical care and stands a good chance of remaining that way without intervention,” 516 F. 2d, at 941. Presumably the Court’s remand does not bar Gamble from pursuing these charges, if necessary through filing a new complaint or formal amendment of the present complaint. The original complaint also alleged that prison officials failed to comply with a doctor’s order to move Gamble to a lower bunk, that they put him in sohtary confinement when he claimed to be physically unable to work, and that they refused to allow him to see a doctor for two days while he was in solitary. Gamble’s medical condition is relevant to ah these allegations. It is therefore probable that the medical records will be produced and that testimony will be elicited about Gamble’s medical care. If the evidence should show that he in fact sustained a serious injury and received only pro forma care, he would surely be allowed to amend his pleading to reassert a claim against one or more of the prison doctors.

       “The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the respondent. Why certiorari was granted is a mystery to me— particularly at a time when the Court is thought by many to be burdened by too heavy a caseload.” Butz v. Glover Livestock Comm’n Co., 411 U. S. 182, 189 (Stewart, J., dissenting).

       As this Court notes, ante, at 100 n. 5, even the meaning of some of the terms used in the complaint is unclear.

       If this was the reason for granting certiorari, the writ should have been dismissed as improvidently granted when it became clear at oral argument that the parties agreed on the constitutional standard and disagreed only as to its application to the allegations of this particular complaint. See Tr. of Oral Arg. 38, 48. does not meet minimum standards of competence or diligence or who cannot give adequate care because of an excessive caseload or inadequate facilities, then the prisoner may suffer from a breach of the State’s constitutional duty.

       As the four dissenting Justices in Resweber pointed out:
      “The intent of the executioner cannot lessen the torture or excuse the result. It was the statutory duty of the state officials to make sure that there was no failure.” 329 U. S., at 477 (Burton, J., joined by Douglas, Murphy, and Rutledge, JJ.).

       The Court indicates the Eighth Amendment is violated “by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Ante, at 104^105. If this is meant to indicate that intent is a necessary part of an Eighth Amendment violation, I disagree. If a State elects to impose imprisonment as a punishment for crime, I believe it has an obligation to provide the persons in its custody with a health care system which meets minimal standards of adequacy. As a part of that basic obligation, the State and its agents have an affirmative duty to provide reasonable access to medical care, to provide competent, diligent medical personnel, and to ensure that prescribed care is in fact delivered. For denial of medical care is surely not part of the punishment which civilized nations may impose for crime.
      Of course, not every instance of improper health care violates the Eighth Amendment. Like the rest of us, prisoners must take the risk that a competent, diligent physician will make an error. Such an error may give rise to a tort claim but not necessarily to a constitutional claim. But when the State adds to this risk, as by providing a physician who


author: Per Curiam. Mr. Chief Justice Burger,

text:
    BELCHER v. STENGEL et al.
    No. 75-823.
    Argued November 2, 1976
    Decided November 30, 1976

      Robert A. Bell argued the cause for petitioner. With him on the brief were John L. Francis and Patrick M. McGrath.

      John H. Lewis argued the cause and filed a brief for respondents.

        Solicitor General Bork, Assistant Attorney General Pottinger, and Walter W. Barnett filed a brief for the United States as amicus curiae urging affirmance.

        Michael E. Geltner, Melvin L. Wiilj, Joel M. Gora, Stanley K. Laughlin, and Nelson G. Karl filed a brief for the American Civil Liberties Union et al. as amici curiae.

   Per Curiam.

This case grew out of a barroom affray in Columbus, Ohio, in the course of which the petitioner, an off-duty Columbus police officer, shot and killed two people and permanently disabled a third. The injured victim and the representatives of the deceased victims, who are the respondents here, brought an action against the petitioner in a Federal District Court under 42 U. S. C. § 1983. A jury awarded them monetary damages, and the judgment based upon that verdict was affirmed by the United States Court of Appeals for the Sixth Circuit. 522 F. 2d 438.

The petition for certiorari, which we granted on April 5, 1976, 425 U. S. 910, presented a single question:

“Does the fact that an off-duty police officer, out of uniform, is required by police department regulation to carry a weapon at all times, establish that any use of that weapon against the person of another, even though the officer is engaged in private conduct at the time, [is] an act 'under color of law’ within the meaning of 42 U. S. C. § 1983?”

The case having now been fully briefed and orally argued, it appears that the question framed in the petition for certiorari is not in fact presented by the record now before us. For in addition to the said police department regulation, there was evidence before the jury that showed: (1) The petitioner had been awarded workmen’s compensation benefits for the injuries he had received in the affray, on the ground that the injuries had been incurred in the course of his employment; (2) the petitioner, after the affray, had been granted official leave on account of injuries received “in line of duty under circumstances relating to Police duties”; (3) a Board of Inquiry convened to investigate the barroom episode had determined that the petitioner’s “actions were in the line of duty.”

Now that plenary consideration has shed more light on this case than in the nature of things was afforded at the time the petition for certiorari was considered, we have concluded that the writ should be dismissed as improvidently granted. See The Monrosa v. Carbon Black, Inc., 359 U. S. 180, 183-184 (1959).

It is so ordered.

Mr. Chief Justice Burger,

concurring.

I join the opinion of the Court. I note, however, several additional factors which came to light during plenary consideration of the case and which were not disclosed in the petition for certiorari. The three factors mentioned by the Court, ante, at 119, as tending to prove that the police officer acted in the course of his duties, are determinations made after the incident in question. There are, however, at least three contemporaneous factors, in addition to possession of the gun, which colored the officer’s conduct as official: (1) The officer testified that he had formed an intention that he would arrest at least two of the men when he stood up to intervene in the altercation; (2) he intervened by using a can of mace issued to him by the police department; (3) he was acting pursuant to a police regulation which required his intervention in any disturbance of the peace, whether he was on or off duty.

These factors seem to me important because of the possible negative inference otherwise created that the only objective fact at the time of the incident evidencing state action was the presence of the state-required gun. While, of course, subsequent determinations by state officials, such as mentioned by the Court, are important evidence of state action, they could not transform something into state action that otherwise would be deemed to be private conduct. Thus, it is unclear what the result would have been had the only contemporaneous evidence of state action been the presence of the state-required gun. I wish to make it clear that the Court is not passing on that question today, because it is not presented by the record in this case.

       Section 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       At no time during this litigation has the petitioner questioned the respondents’ claim that, if the petitioner was acting “under color of .law,” there was a deprivation of the respondents’ “rights, privileges, or immunities secured by the Constitution and laws” within the meaning of 42 ü. S. C. § 1983.


author: Per Curiam.

text:
    UNITED STATES v. KOPP
    No. 75-1536.
    Decided December 6, 1976
   Per Curiam.

The operative facts herein are substantially identical to those in United States v. Morrison, ante, p. 1, and United States v. Rose, ante, p. 5. Respondent’s car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), dismissed the indictment. The Court of Appeals for the Tenth Circuit, as it did in Morrison and Rose, found the Government’s appeal barred by double jeopardy.

In United States v. Wilson, 420 U. S. 332 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the dismissal of the indictment here occurred after a general finding of guilt rendered- by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, supra. Double jeopardy therefore does not bar an appeal by the Government.

We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court for proceedings consistent herewith.


author: Per Curiam. Mr. Justice Rehnquist,

text:
    DAVIS v. GEORGIA
    No. 76-5403.
    Decided December 6, 1976
   Per Curiam.

The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in Witherspoon v. Illinois, 391 U. S. 510 (1968), and applied in Boulden v. Holman, 394 U. S. 478 (1969), and Maxwell v. Bishop, 398 U. S. 262 (1970). The Witherspoon case held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U. S., at 522.

The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: “The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community.” 236 Ga. 804, 809-810, 225 S. E. 2d 241, 244-245.

That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See Wigglesworth v. Ohio, 403 U. S. 947 (1971), rev’g 18 Ohio St. 2d 171, 248 N. E. 2d 607 (1969); Harris v. Texas, 403 U. S. 947 (1971), rev’g 457 S. W. 2d 903 (Tex. Crim. App. 1970); Adams v. Washington, 403 U. S. 947 (1971), rev’g 76 Wash. 2d 650, 458 P. 2d 558 (1969). Unless a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,” 391 U. S., at 522 n. 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.

Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Blackmun join,

dissenting.

As is clear from the most cursory reading, Witherspoon v. Illinois, 391 U. S. 510 (1968), does not inexorably lead to the result this Court now reaches. Indeed, much of the language in that opinion would support the reasoning, and the result, reached by the Supreme Court of Georgia. The extension of Witherspoon to cover the case where a sole venireman is excluded in violation of its test deserves plenary consideration, not a per se rule that precludes application of even the harmless-error test of Chapman v. California, 386 U. S. 18 (1967). There is no indication that the Supreme Court of Georgia was wrong when it observed that the “record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community,” 236 Ga. 804, 809-810, 225 S. E. 2d 241, 245.

It is, moreover, unclear whether the State was entitled to another peremptory challenge, and surely Witherspoon does not decide whether the presence of unexercised peremptory challenges might render harmless the improper exclusion of a limited number of veniremen. Finally, the defect in this case is not that a juror was improperly excluded because she was not irrevocably opposed to the death penalty; rather, the defect is a failure to question sufficiently to determine whether or not she was irrevocably opposed. It is not inconceivable that a hearing with the excluded juror could be conducted now to finish the aborted questioning and determine whether she would have, in fact, been excludable for cause.

The effects of the arguably improper exclusion, in short, are too murky to warrant summary reversal of the sentence imposed. Since I do not believe this case is controlled by our past decisions, I would grant certiorari and set the case for argument.

      Nonnally, the defense, in a capital case, is entitled to 20 peremptory challenges, and the State is entitled to one-half as many as the defense. Ga. Code Ann. § 59-805 (1965). In this case, the transcript reveals that the defense utilized 21 peremptory challenges; the State, 10.