author: Mr. Justice White Mr. Justice Brennan, Mr. Justice Stevens,

text:
    WARD v. ILLINOIS
    No. 76-415.
    Argued April 27, 1977
    Decided June 9, 1977

      J. Steven Beckett argued the cause for appellant. With him on the brief was Donald M. Reno, Jr.

      Melbourne A. Noel, Jr., Assistant Attorney General of Illinois, argued the cause for appellee. With him on the brief were William J. Scott, Attorney General, and Raymond McKoski, Assistant Attorney General.
   Mr. Justice White

delivered the opinion of the Court.

The principal issue in this case is the validity of the Illinois obscenity statute, considered in light of Miller v. California, 413 U. S. 15 (1973). There we reaffirmed numerous prior decisions declaring that “obscene material is unprotected by the First Amendment,” id., at 23; but acknowledging “the inherent dangers of undertaking to regulate any form of expression,” ibid., we recognized that official regulation must be limited to “works which depict or describe sexual conduct” and that such conduct “must be specifically defined by the applicable state law, as written or authoritatively construed.” Id., at 24. Basic guidelines for the trier of fact, along with more specific suggestions, were then offered:

“The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U. S. 229,] 230 [(1972)], quoting Roth v. United States, [354 U. S. 476,] 489 [(1957)]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U. S., at 419; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting).
“We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 24-25. (Footnotes omitted.)

Illinois Rev. Stat., c. 38, § 11-20 (a)(1) (1975), forbids the sale of obscene matter. Section 11-20 (b) defines “obscene” as follows:

“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.”

In October 1971 appellant Ward was charged in the State of Illinois with having sold two obscene publications in violation of § 11-20 (a)(1). A jury was waived. At the bench trial the State’s evidence consisted solely of the two publications — “Bizarre World” and “Illustrated Case Histories, a Study of Sado-Masochism” — and the testimony of the police officer who purchased them in Ward’s store. Ward was found guilty, and in April 1972, he was sentenced to one day in jail and fined $200. His conviction was affirmed in the state appellate courts after this Court’s decision in Miller. The Illinois Supreme Court expressly rejected his challenge to the constitutionality of the Illinois obscenity statute for failure to conform to the standards of Miller, as well as a claim that the two publications were not obscene. 63 Ill. 2d 437, 349 N. E. 2d 47 (1976). Ward appealed, and we noted probable jurisdiction, 429 U. S. 1037 (1977), to resolve a conflict with a decision of a three-judge District Court for the Northern District of Illinois. Eagle Books, Inc. v. Reinhard, 418 F. Supp. 345 (1976), appeal docketed, No. 76-366. We affirm.

As we read the questions presented by Ward, they fairly subsume four issues. First, is the claim that Illinois has failed to comply with Miller’s requirement that the sexual conduct that may not be depicted in a patently offensive way must be “specifically defined by the applicable state law as written or authoritatively construed,” see supra, at 768, and that absent such compliance the Illinois law is unconstitutionally vague because it failed to give him notice that materials dealing with the kind of sexual conduct involved here could not legally be sold in the State. This claim is wholly without merit. As we shall see below, the State has complied with Miller, but even if this were not the case, appellant had ample guidance from the Illinois Supreme Court that his conduct did not conform to the Illinois law. Materials such as these, which by title or content may fairly be described as sado-masochistic, had been expressly held to violate the Illinois statute long before Miller and prior to the sales for which Ward was prosecuted.

In People v. Sikora, 32 Ill. 2d 260, 267-268, 204 N. E. 2d 768, 772-773 (1965), there are detailed recitations of the kind of sexual conduct depicted in the materials found to be obscene under the Illinois statute. These recitations included “sadism and masochism.” See also People v. DeVilbiss, 41 Ill. 2d 135, 142, 242 N. E. 2d 761, 765 (1968); cf. Chicago v. Geraci, 46 Ill. 2d 576, 582-583, 264 N. E. 2d 153, 157 (1970). The construction of the statute in Sikora gives detailed meaning to the Illinois law, is binding on us, and makes plain that § 11-20 reaches the kind of sexual materials which we now have before us. If Ward cannot be convicted for selling these materials, it is for other reasons and not because the Illinois statute is vague and gave him no notice that the statute purports to ban the kind of materials he sold. The statute is not vague as applied to Ward’s conduct.

Second, Ward appears to assert that sado-masochistic materials may not be constitutionally proscribed because they are not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the aspect of its obscenity definition dealing with patently offensive depictions of specifically defined sexual conduct. But those specifics were offered merely as “examples,” 413 U. S., at 25; and, as later pointed out in Hamling v. United States, 418 U. S. 87, 114 (1974), they “were not intended to be exhaustive.” Furthermore, there was no suggestion in Miller that we intended to extend constitutional protection to the kind of flagellatory materials that were among those held obscene in Mishkin v. New York, 383 U. S. 502, 505-510 (1966). If the Mishkin publications remain unprotected, surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law.

The third claim is simply that these materials are not obscene when examined under the three-part test of Miller. This argument is also foreclosed by Mishkin v. New York, supra, which came down the same day as Memoirs v. Massachusetts, 383 U. S. 413 (1966), and which employed the obscenity criteria announced by the latter case. See Marks v. United States, 430 U. S. 188, 194 (1977). The courts below examined the materials and found them obscene under the Illinois statute, which, as we shall see, infra, at 774-776, conforms to the standards set out in Miller, except that it retains the stricter Memoirs formulation of the “redeeming social value” factor. We have found no reason to differ with the Illinois courts.

Fourth, even assuming that the Illinois statute had been construed to overcome the vagueness challenge in this case and even assuming that the materials at issue here are not protected under Miller, there remains the claim that Illinois has failed to conform to the Miller requirement that a state obscenity law, as written or authoritatively construed, must state specifically the kinds of sexual conduct the description or representation of which the State intends to proscribe by its obscenity law. If Illinois has not complied with this requirement, its statute is arguably overbroad, unconstitutional on its face, and an invalid predicate for Ward’s conviction.

As we see it, Illinois has not failed to comply with Miller, and its statute is not overbroad. People v. Ridens, 51 Ill. 2d 410, 282 N. E. 2d 691 (1972), vacated and remanded, 413 U. S. 912 (1973), involved a conviction under this same Illinois obscenity law. It was pending on our docket when our judgment and opinion in Miller issued. We vacated the Ridens judgment and remanded the case for further consideration in the light of Miller. On remand, the Illinois Supreme Court explained that originally § 11-20 had provided the tests for obscenity found in Roth v. United States, 354 U. S. 476 (1957), and that it subsequently had been construed to incorporate the tripartite standard found in Memoirs v. Massachusetts, supra, including the requirement that the materials prohibited be “utterly without redeeming social value.” People v. Ridens, 59 Ill. 2d 362, 321 N. E. 2d 264 (1974). The Illinois court then proceeded to “construe section 11-20 of the Criminal Code ... to incorporate parts (a) and (b) of the Miller standards,” id., at 373, 321 N. E. 2d, at 270, but to retain the “utterly without redeeming social value” standard of Memoirs in preference to the more relaxed criterion contained in part (c) of the Miller guidelines. Ridens’ conviction was affirmed, and we denied certiorari. 421 U. S. 993 (1975).

Because the Illinois court did not go further and expressly describe the kinds of sexual conduct intended to be referred to under part (b) of the Miller guidelines, the issue is whether the Illinois obscenity law is open-ended and overbroad. As we understand the Illinois Supreme Court, however, the statute is not vulnerable in this respect. That court expressly incorporated into the statute part (b) of the guidelines, which requires inquiry “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” 413 U. S., at 24. The Illinois court thus must have been aware of the need for specificity and of the Miller Court's examples explaining the reach of part (b). See id., at 25. The Illinois court plainly intended to conform the Illinois law to part (b) of Miller, and there is no reason to doubt that, in incorporating the guideline as part of the law, the Illinois court intended as well to adopt the Miller examples, which gave substantive meaning to part (b) by indicating the kinds of materials within its reach. The alternative reading of the decision would lead us to the untenable conclusion that the Illinois Supreme Court chose to create a fatal flaw in its statute by refusing to take cognizance of the specificity requirement set down in Miller.

Furthermore, in a later case, People v. Gould, 60 Ill. 2d 159, 324 N. E. 2d 412 (1975), the Illinois Supreme Court quoted at length from Miller v. California, including the entire passage set out at the beginning of this opinion, supra, at 768-770 — a passage that contains the explanatory examples as well as the guidelines. It then stated that Ridens had construed the Illinois statute to include parts (a) and (b) of the Miller guidelines, and it expressly referred to the standards set out in the immediately preceding quotation from Miller. 60 Ill. 2d, at 164-165, 324 N. E. 2d, at 415. Because the quotation contained not only part (b) but the examples given to explain that part, it would be a needlessly technical and wholly unwarranted reading of the Illinois opinions to conclude that the state court did not adopt these explanatory examples as well as the guidelines themselves.

It might be argued that, whether or not the Illinois court adopted the Miller examples as part of its law, § 11-20 nevertheless remains overbroad because the State has not provided an exhaustive list of the sexual conduct the patently offensive description of which may be held obscene under the statute. We agree with the Illinois Supreme Court, however, that “in order that a statute be held overbroad the overbreadth 'must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ (Broadrick v. Oklahoma, 413 U. S. 601, 615 . . . .)” People v. Ridens, supra, at 372, 321 N. E. 2d, at 269. Since it is plain enough from its prior cases and from its response to Miller that the Illinois court recognizes the limitations on the kinds of sexual conduct which may not be represented or depicted under the obscenity laws, we cannot hold the Illinois statute to be unconstitutionally overbroad.

Given that Illinois has adopted Miller’s explanatory examples, what the State has done in attempting to bring its statute in conformity with Miller is surely as much as this Court did in its post-Miller construction of federal obscenity statutes. In Hamling v. United States, 418 U. S., at 114, we construed 18 U. S. C. § 1461, which prohibits the mailing of obscene matter, to be limited to “the sort of” patently offensive representations or descriptions of that specific hardcore sexual conduct given as examples in Miller. We have also indicated our approval of an identical approach with respect to the companion provisions of 18 U. S. C. § 1462, which prohibits importation or transportation of obscene matter. See United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 130 n. 7 (1973).

Finding ail four of Ward’s claims to be without merit, we affirm the judgment of the Illinois Supreme Court.

So ordered.

Mr. Justice Brennan,

with whom Mr. Justice Stewart joins, dissenting.

Petitioner was convicted of selling allegedly obscene publications in violation of the Illinois Obscenity Statute, Ill. Rev. Stat., c. 38, § 11-20 (a)(1) (1975). The Illinois Supreme Court affirmed the conviction. Although I have joined my Brother Stevens’ dissent, I could also reverse the conviction on the ground I have previously relied upon, namely that this statute is “clearly overbroad and unconstitutional on its face.” 413 U. S. 913, 914 (1973) (Brennan, J., dissenting in Miller v. United States and other cases), citing Miller v. California, 413 U. S. 15, 47 (1973) (Brennan, J., dissenting); see Ridens v. Illinois, 413 U. S. 912 (1973), vacating and remanding 51 Ill. 2d 410, 282 N. E. 2d 691 (1972).

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting.

The decision in this case confirms the statement in Miller v. California, 413 U. S. 15, 23, that “[t]his is an area in which there are few eternal verities.” Today, the Court silently abandons one of the cornerstones of the Miller test announced so forcefully just five years ago.

The Miller Court stated:

“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” Id., at 27.

The specificity requirement is stressed elsewhere in the opinion. More than 50 cases were remanded for further consideration to give the defendants the “benefit” of this aspect of Miller. See 413 U. S. 902 et seq.; Marks v. United States, 430 U. S. 188, 197 n. 12.

Many state courts, taking Miller at face value, invalidated or substantially limited their obscenity laws. Others, like Illinois, did “little more than pay lip service to the specificity requirement in Miller.” F. Schauer, The Law of Obscenity 167 (1976). Like most pre-Miller obscenity statutes, the Illinois statute contained open-ended terms broad enough to prohibit the distribution of any material making an “appeal ... to prurient interest.” In its post-Miller opinions, the Illinois Supreme Court has made it clear that the statute covers all of the Miller examples. It has not, however, stated that the statute is limited to those examples, or to any other specifically defined category.

Nevertheless, this Court affirms the conviction in this Illinois case on two theories. The first is that this particular defendant had notice that the State considered these materials obscene, because prior Illinois cases had upheld obscenity convictions concerning similar material. But, if such notice is all that is required, it is difficult to understand why the Miller case itself»was remanded for consideration of the specificity issue, see 413 U. S., at 37. For the description of the materials involved in Miller leaves no room for doubt that they were similar to materials which had often been the subject of prosecutions in the past; there clearly was no question of fair notice.

The Courtis second theory is that, in any event, the Illinois statute is sufficiently specific to satisfy Miller. Although the statute does not contain an “exhaustive list” of specific examples, ante, at 776, it passes muster because it contains a generic reference to “the kinds of sexual conduct which may not be represented or depicted under the obscenity laws . . . .” Ibid, (emphasis in original). To hold that the list need not be exhaustive is to hold that a person can be prosecuted although the materials he sells are not specifically described in the list. Only five years ago, the Court promised that “no one” could be so prosecuted, Miller, 413 U. S., at 27. And if the statute need only describe the “kinds” of proscribed sexual conduct, it adds no protection to what the Constitution itself creates. For in Jenkins v. Georgia, 418 U. S. 153, this Court held that the Constitution protected all expression which is not “within either of the two examples given in Miller” or “sufficiently similar to such material to justify similar treatment.” Id., at 161.

One of the strongest arguments against regulating obscenity-through criminal law is the inherent vagueness of the obscenity concept. The specificity requirement as described in Miller held out the promise of a principled effort to respond to that argument. By abandoning that effort today, the Court withdraws the cornerstone of the Miller structure and, undoubtedly, hastens its ultimate downfall. Although the decision is therefore a mixed blessing, I nevertheless respectfully dissent.

       Section 11-20 (c) provides:
      “(c) Interpretation of Evidence.
      “Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience,”

       The questions presented in Ward’s Jurisdictional Statement 3 are (1) whether the provisions of § 11-20, “on its face and as construed by the Illinois Supreme Court, are vague, indefinite, overbroad and uncertain, in violation of the free speech and press and due process provisions of the First and Fourteenth Amendments to the Constitution of the United States”; and (2) whether “the publications, ‘Bizarre World’ and ‘Illustrated Case Histories, a Study of Sado-Masochism’ are constitutionally protected, as a matter of law.”

       The Illinois Supreme Court described the materials as follows, 32 Ill. 2d, at 267-268, 204 N. E. 2d, at 772-773:
      “ ‘Lust Campus’ by Andrew Shaw is a story of sexual adventures on a college campus 'where even members of the faculty taught sin and evil.’ The book describes homosexuals 'necking’ on a public beach; mutual masturbation; self-fondling; a circle of persons engaged in oral-genital contact; rape; intercourse; lesbian intercourse; cunnilingus and flagellation; flagellation with barbed wire; an abortion with red-hot barbed wire; masturbation with a mirror reflection, and a transvestite episode.
      “ 'Passion Bride’ by John Dexter described curricular and extracurricular sexual episodes that take place during a honeymoon on the French Riviera. The book describes masturbation; intercourse; a party between an old man and three prostitutes; attempted intercourse in a bath; lesbian foreplay; flagellation; rape ending in the death of the female from a broken back and intercourse ending in the broken back of the male participant.
      “ 'Crossroads of Lust’ by Andrew Shaw describes the sexual adventures of various persons in a small town. There are numerous descriptions of intercourse; lesbian intercourse; oral-genital contact; and rape. A woman stabs a man in the course of intercourse, completing the act after he is dead. There are also three voyeurism scenes, two of which involve watching lesbian love play. The third is characterized by sadism and masochism.”

       This case involved a local ordinance that the Illinois Supreme Court described as identical to the state statute. The court described the materials at issue:
      “The books are replete with accounts of homosexual acts, masturbation, flagellation, oral-genital acts, rape, voyeurism, masochism and sadism. These accounts can only appeal to the prurient interest, and clearly go beyond customary limits of candor in the kinds of conduct described and in the detail of description.” 41 Ill. 2d, at 142, 242 N. E. 2d, at 765.

       The materials under scrutiny — also under a local ordinance — were described by the court:
      “The author’s accounts of normal and abnormal sexual conduct, including sodomy, flagellation, masturbation, oral-genital contact, anal intercourse, lesbianism, and sadism and masochism, are vivid, intimately detailed, and explicit. (Cf. One, Inc. v. Olesen (1958), 355 U. S. 371 . . .)” 46 Ill. 2d, at 582-583, 264 N. E. 2d, at 157.

       Four Justices dissented, but waived the Rule of Four — that, if at least four Justices so request, the Court will give plenary consideration to a particular case. 421 U. S., at 994 n.

       “That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. . . .
      “The basic guidelines for the trier of fact must be: ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law . . . .” 413 U. S., at 24.
      On the following page, the Court gives examples of such “specific” definitions.

         E. g., State v. Harding, 114 N. H. 335, 321 A. 2d 108 (1974); People v. Tabron, 320 Colo. 646, 544 P. 2d 372 (1976); ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976); State v. Wedelstedt, 213 N. W. 2d 652 (Iowa 1973); Commonwealth v. Horton, 365 Mass. 164, 310 N. E. 2d 316 (1974). Many statutes passed since Miller have included definitions more specific than that given in Miller. See, e. g., La Rev. Stat. Ann. § 14:106 (1974); N. Y. Penal Law §235.00 (McKinney 1974 and Supp. 1976).

       This Court saved such a statute in Hamling v. United States, 418 U. S. 87, by holding that it was limited to the examples given in Miller. In its final footnote to United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 130 n. 7, the Court had stated that it was prepared to construe generic words such as “obscene” and “lewd” in 18 U. S. C. § 1462, “as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core’ sexual conduct given as examples in
        Miller.” (Emphasis added.) In Hamling, the Court quoted this language and added:
      “As noted above, we indicated in [12 200-Ft. Reels of Film] that we were prepared to construe the generic terms in 18 U. S. C. § 1462 to be limited to the sort of ‘patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California.’ We now so construe the companion provision in 18 U. S. C. § 1461 .. . .” 418 U. S., at 114.

       In a well-reasoned opinion, a three-Judge District Court for the Northern District of Illinois carefully reviewed the Illinois authorities and concluded that Illinois has failed to meet the specificity requirement of Miller. Eagle Books, Inc. v. Reinhard, 418 F. Supp. 345 (ND Ill. 1976). This conclusion is well founded.
      The Illinois statute defines obscenity in these terms:
      “A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.” Ill. Rev. Stat., c. 38, § 11-20 (b) (1975).
      Nothing in this definition or the rest of the statute “specifically defines” what depiction of hard-core sexual conduct is prohibited.
      The Illinois Supreme Court has not remedied this deficiency by supplying a limiting construction. In its primary discussion of the State’s obscenity statute in relation to the Miller specificity requirement, People v. Ridens, 59 Ill. 2d 362, 321 N. E. 2d 264 (1974) (Ridens II), the Illinois Supreme Court relied on two cases to uphold the statute. In the first case, Grayned v. City of Rockford, 408 U. S. 104, 110, this Court noted in language quoted by the Illinois court that “[t]he words of the Rockford ordinance are marked by ‘flexibility and reasonable breadth, rather than meticulous specificity ....’” The second case which the Ridens II court relied upon was its own decision in People v. Raby, 40 Ill. 2d 392, 240 N. E. 2d 595 (1968). That case concerned the aUeged vagueness of a statute designed to prohibit public disorder. The Illinois court quoted the following language from Raby, and in the next sentence relied upon that decision and Grayned in upholding the statute’s specificity:
      “It is true that section 26-i (a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility'- of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” 40 Ill. 2d, at 396, 240 N. E. 2d, at 598.
      Neither of these decisions requires conduct to be specifically defined; indeed, Raby notes that to survive a vagueness attack a statute need not “attempt to particularize all of the myriad kinds of conduct” within its bounds. This may be true for other vagueness attacks, but does not square with the special Miller requirement that conduct be specifically defined. Nowhere else in the Ridens II opinion does the Illinois Supreme Court limit the reach of the obscenity statute.
      In the present case, the Illinois Supreme Court again considered the specificity problem, and again refused to narrow the statute:
      “It was held in Ridens II that the obscenity statute was sufficiently clear and that it adequately informed the public of the conduct whose depiction is proscribed. We noted that the statutory definition of obscenity includes within the scope of the ‘prurient interest’ a 'shameful or morbid interest in nudity, sex or excretion.’ The defendant argues that we erred in Ridens II in our interpretation of Miller and that Miller requires obscenity statutes to be much more specific in defining the type of material which will be considered obscene. We see no reason to reconsider our decision in Ridens II. It is extremely difficult to define the term ‘obscenity’ with a fine degree of precision. We again express our opinion that Illinois’ statutory definition is sufficiently clear to withstand constitutional objections.” 63 Ill. 2d 437, 441, 349 N. E. 2d 47, 49 (1976).
      Thus, there does not appear to be anything in the Illinois decisions that would preclude the State from prosecuting forms of obscenity not “specifically defined” in prior decisions. And, as noted above, the statute provides no specific definition in this area.

       The materials are described as follows in the opinion :
      “While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.” 413 U. S., at 18.
      The State’s description was somewhat more specific:
      “The materials involved are a collection of depictions of cunnilingus, sodomy, buggery and other similar sexual acts performed in groups of two or more.” Brief for Appellee in No. 70-73, O. T. 1972, p. 26.

       If fair notice is the issue, it is hard to see how this can be provided by a narrowing construction made after the underlying conduct. Yet in Hamling, 418 U. S., at 115-116, the Court held such ex post facto “notice” sufficient.


source: Caselaw Access Project

author: Mr. Justice Marshall Me. Justice Stevens,

license: Public Domain

text:
    UNITED STATES v. LOVASCO
    No. 75-1844.
    Argued March 21-22, 1977
    Decided June 9, 1977

      John P. Rupp argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Deputy Solicitor General Frey, Jerome M. Feit, and Robert H. Plaxico.

      Louis Gilden argued the cause and filed a brief for respondent.
   Mr. Justice Marshall

delivered the opinion of the Court.

We granted certiorari in this case to consider the circumstances in which the Constitution requires that an indictment be dismissed because of delay between the commission of an offense and the initiation of prosecution.

I

On March 6, 1975, respondent was indicted for possessing eight firearms stolen from the United States mails, and for dealing in firearms without a license. The offenses were alleged to have occurred between July 25 and August 31,1973, more than 18 months before the indictment was filed. Respondent moved to dismiss the indictment due to the delay.

The District Court conducted a hearing on respondent’s motion at which the respondent sought to prove that the delay was unnecessary and that it had prejudiced his defense. In an effort to establish the former proposition, respondent presented a Postal Inspector’s report on his investigation that was prepared one month after the crimes were committed, and a stipulation concerning the post-report progress of the probe. The report stated, in brief, that within the first month of the investigation respondent had admitted to Government agents that he had possessed and then sold five of the stolen guns, and that the agents had developed strong evidence linking respondent to the remaining three weapons. The report also stated, however, that the agents had been unable to confirm or refute respondent’s claim that he had found the guns in his car when he returned to it after visiting his son, a mail handler, at work. The stipulation into which the Assistant United States Attorney entered indicated that little additional information concerning the crimes was uncovered in the 17 months following the preparation of the Inspector’s report.

To establish prejudice to the defense, respondent testified that he had lost the testimony of two material witnesses due to the delay. The first witness, Tom Stewart, died more than a year after the alleged crimes occurred. At the hearing respondent claimed that Stewart had been his source for two or three of the guns. The second witness, respondent’s brother, died in April 1974, eight months after the crimes were completed. Respondent testified that his brother was present when respondent called Stewart to secure the guns, and witnessed all of respondent’s sales. Respondent did not state how the witnesses would have aided the defense had they been willing to testify.

The Government made no systematic effort in the District Court to explain its long delay. The Assistant United States Attorney did expressly disagree, however, with defense counsel’s suggestion that the investigation had ended after the Postal Inspector’s report was prepared. App. 9-10. The prosecutor also stated that it was the Government’s theory that respondent’s son, who had access to the mail at the railroad terminal from which the guns were “possibly stolen,” id., at 17, was responsible for the thefts, id., at 13. Finally, the prosecutor elicited somewhat cryptic testimony from the Postal Inspector indicating that the case “as to these particular weapons involves other individuals”; that information had been presented to a grand jury “in regard to this case other than . . . [on] the day of the indictment itself”; and that he had spoken to the prosecutors about the case on four or five occasions. Id., at 20.

Following the hearing, the District Court filed a brief opinion and order. The court found that by October 2, 1973, the date of the Postal Inspector’s report, “the Government had all the information relating to defendant’s alleged commission of the offenses charged against him,” and that the 17-month delay before the case was presented to the grand jury “had not been explained or justified” and was “unnecessary and unreasonable.” The court also found that “[a]s a result of the delay defendant has been prejudiced by reason of the death of Tom Stewart, a material witness on his behalf.” Pet. for Cert. 14a. Accordingly, the court dismissed the indictment.

The Government appealed to the United States Court of Appeals for the Eighth Circuit. In its brief the Government explained the months of inaction by stating:

“[T]here was a legitimate Government interest in keeping the investigation open in the instant case. The defendant’s son worked for the Terminal Railroad and had access to mail. It was the Government’s position that the son was responsible for the theft and therefore further investigation to establish this fact was important.
“. . . Although the investigation did not continue on a full time basis, there was contact between the United States Attorney’s office and the Postal Inspector’s office throughout . . . and certain matters were brought before a Federal Grand Jury prior to the determination that the case should be presented for indictment . . . .” Brief for United States in No. 75-1852 (CA8), pp. 5-6.

The Court of Appeals accepted the Government’s representation as to the motivation for the delay, but a majority of the court nevertheless affirmed the District Court’s finding that the Government’s actions were “unjustified, unnecessary, and unreasonable.” 532 E. 2d 59, 61 (1976). The majority also found that respondent had established that his defense had been impaired by the loss of Stewart’s testimony because it understood respondent to contend that “were Stewart’s testimony available it would support [respondent’s] claim that he did not know that the guns were stolen from the United States mails.” Ibid. The court therefore affirmed the District Court’s dismissal of the three possession counts by a divided vote.

We granted certiorari, 429 U. S. 884, and now reverse.

II

In United States v. Marion, 404 U. S. 307 (1971), this Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. We held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only “a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections” of that provision. Id., at 320. We went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide “ 'the primary guarantee against bringing overly stale criminal charges.’ ” Id., at 322, quoting United States v. Ewell, 383 U. S. 116, 122 (1966). But we did acknowledge that the "statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment,” 404 U. S., at 324, and that the Due Process Clause has a limited role to play in protecting against oppressive delay.

Respondent seems to argue that due process bars prosecution whenever a defendant suffers prejudice as a result of preindictment delay. To support that proposition respondent relies on the concluding sentence of the Court’s opinion in Manon where, in remanding the case, we stated that “[e] vents of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.” Id., at 326. But the quoted sentence establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid. Indeed, two pages earlier in the opinion we expressly rejected the argument respondent advances here:

“[W]e need not. . . determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” Id., at 324-325. (Footnotes omitted.)

Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

The Court of Appeals found that the sole reason for the delay here was “a hope on the part of the Government that others might be discovered who may have participated in the theft . . . .” 532 F. 2d, at 61. It concluded that this hope did not justify the delay, and therefore affirmed the dismissal of the indictment. But the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment. Judges are not free, in defining “due process,” to impose on law enforcement officials our “personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.” Rochin v. California, 342 U. S. 165, 170 (1952). Our task is more circumscribed. We are to determine only whether the action complained of — here, compelling respondent to stand trial after the Government delayed indictment to investigate further — violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” Mooney v. Holohan, 294 U. S. 103, 112 (1935), and which define “the community’s sense of fair play and decency,” Rochin v. California, supra, at 173. See also Ham v. South Carolina, 409 U. S. 524, 526 (1973); Lisenba v. California, 314 U. S. 219, 236 (1941); Hebert v. Louisiana, 272 U. S. 312, 316 (1926); Hurtado v. California, 110 U. S. 516, 535 (1884).

It requires no extended argument to establish that prosecutors do not deviate from “fundamental conceptions of justice” when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty “would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself,” United States v. Ewell, supra, at 120. From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may “interfere with the defendant’s liberty, . . . disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” 404 U. S., at 320. From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one’s interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.

It might be argued that once the Government has assembled sufficient evidence to prove guilt beyond a reasonable doubt, it should be constitutionally required to file charges promptly, even if its investigation of the entire criminal transaction is not complete. Adopting such a rule, however, would have many of the same consequences as adopting a rule requiring immediate prosecution upon probable cause.

First, compelling a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor’s ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.

Second, insisting on immediate prosecution once sufficient evidence is developed to obtain a conviction would pressure prosecutors into resolving doubtful cases in favor of early— and possibly unwarranted — prosecutions. The determination of when the evidence available to the prosecution is sufficient to obtain a conviction is seldom clear-cut, and reasonable persons often will reach conflicting conclusions. In the instant case, for example, since respondent admitted possessing at least five of the firearms, the primary factual issue in dispute was whether respondent knew the guns were stolen as required by 18 U. S. C. § 1708. Not surprisingly, the Postal Inspector’s report contained no direct evidence bearing on this issue. The decision whether to prosecute, therefore, required a necessarily subjective evaluation of the strength of the circumstantial evidence available and the credibility of respondent’s denial. Even if a prosecutor concluded that the case was weak and further investigation appropriate, he would have no assurance that a reviewing court would agree. To avoid the risk that a subsequent indictment would be dismissed for preindictment delay, the prosecutor might feel constrained to file premature charges, with all the disadvantages that would entail.

Finally, requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases. The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the Government’s case, in order to determine whether prosecution would be in the public interest. Prosecutors often need more information than proof of a suspect’s guilt, therefore, before deciding whether to seek an indictment. Again the instant case provides a useful illustration. Although proof of the identity of the mail thieves was not necessary to convict respondent of the possessory crimes with which he was charged, it might have been crucial in assessing respondent’s culpability, as distinguished from his legal guilt. If, for example, further investigation were to show that respondent had no role in or advance knowledge of the theft and simply agreed, out of paternal loyalty, to help his son dispose of the guns once respondent discovered his son had stolen them, the United States Attorney might have decided not to prosecute, especially since at the time of the crime respondent was over 60 years old and had no prior criminal record. Requiring prosecution once the evidence of guilt is clear, however, could prevent a prosecutor from awaiting the information necessary for such a decision.

“The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence may exist which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:
“(i) the prosecutor’s reasonable doubt that the accused is in fact guilty; “(ii) the extent of the harm caused by the offense;
“(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
“(iv) possible improper motives of a complainant;
“(v) reluctance of the victim to testify;
“(vi) cooperation of the accused in the apprehension or conviction of others;
“(vii) availability and likelihood of prosecution by another jurisdiction.”

We would be most reluctant to adopt a rule which would have these consequences absent a clear constitutional command to do so. We can find no such command in the Due Process Clause of the Fifth Amendment. In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely “to gain tactical advantage over the accused,” United States v. Marion, 404 U. S., at 324, precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of “orderly expedition” to that of “mere speed,” Smith v. United States, 360 U. S. 1, 10 (1959). This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.

In the present case, the Court of Appeals stated that the only reason the Government postponed action was to await the results of additional investigation. Although there is, unfortunately, no evidence concerning the reasons for the delay in the record, the court’s “finding” is supported by the prosecutor’s implicit representation to the District Court, and explicit representation to the Court of Appeals, that the investigation continued during the time that the Government deferred taking action against respondent. The finding is, moreover, buttressed by the Government’s repeated assertions in its petition for certiorari, its brief, and its oral argument in this Court, “that the delay was caused by the government’s, efforts to identify persons in addition to respondent who may have participated in the offenses.” Pet. for Cert. 14. mUst assume that these statements by counsel have been made in good faith. In light of this explanation, it follows that compelling respondent to stand trial would not be fundamentally unfair. The Court of Appeals therefore erred in affirming the District Court’s decision dismissing the indictment.

Ill

In Marion we conceded that we could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions. 404 U. S., at 324. More than five years later, that statement remains true. Indeed, in the intervening years so few defendants have established that they were prejudiced by delay that neither this Court nor any lower court has had a sustained opportunity to consider the constitutional significance of various reasons for delay. We therefore leave to the lower courts, in the first instance, the task of applying the settled principles of due process that we have discussed to the particular circumstances of individual cases. We simply hold that in this case the lower courts erred in dismissing the indictment.

Reversed.

Me. Justice Stevens,

dissenting.

If the record presented the question which the Court decides today, I would join its well-reasoned opinion. I am unable to do so because I believe our review should be limited to the facts disclosed by the record developed in the District Court and the traditional scope of review we have exercised with regard to issues of fact.

After a thorough hearing on the respondent’s motion to dismiss the indictment for prejudicial preindictment delay— a hearing at which both sides were given every opportunity to submit evidence concerning the question- — -the District Court found that “[t]he Government’s delay ha[d] not been explained or justified and [was] unnecessary and unreasonable.” On appeal, the Court of Appeals concurred, noting that the District Court’s determination was “supported by the evidence.” 532 F. 2d 59, 60-61 (CA8 1976). These concurrent findings of fact make it improper, in my judgment, for this Court to make its own determination that “the Government postponed action ... to await the results of additional investigation,” ante, at 796.

That determination is not supported by the record. The majority opinion correctly points out that there was “no evidence concerning the reasons for delay in the record,” and yet proceeds to accept as fact the representations in the Government’s briefs to the Court of Appeals and to this Court that “ 'the delay was caused by the government’s efforts to identify persons in addition to respondent who may have participated in the offenses.’ ” Ibid. This finding of a continuing investigation, which forms the foundation of the majority opinion, comes from statements of counsel made during the appellate process. As we have said of other unsworn statements which were not part of the record and therefore could not have been considered by the trial court: “Manifestly, [such statements] cannot be properly considered by us in the disposition of [a] case.” Adickes v. Kress & Co., 398 U. S. 144, 157-158, n. 16. While I do not question the good faith of Government counsel, it is not the business of appellate courts to make decisions on the basis of unsworn matter not incorporated in a formal record.

The findings of the District Court, as approved by the Court of Appeals, establish four relevant propositions: (1) this is a routine prosecution; (2) after the Government assembled all of the evidence on which it expects to establish respondent’s guilt, it waited almost 18 months to seek an indictment; (3) the delay was prejudicial to respondent’s defense; and (4) no reason whatsoever explains the delay. We may reasonably infer that the prosecutor was merely busy with other matters that he considered more important than this case.

The question presented by those facts is not an easy one. Nevertheless, unless we are to conclude that the Constitution imposes no constraints on the prosecutor’s power to postpone the filing of formal charges to suit his own convenience, I believe we must affirm the judgment of the Court of Appeals. A contrary position “can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing.” Moody v. Daggett, 429 U. S. 78, 91 (Stevens, J., dissenting). The requirement of speedy justice has been part of the Anglo-American common-law tradition since the Magna Carta. See id., at 92 n. 5. It came to this country and was embodied in the early state constitutions, see the Massachusetts Constitution of 1780, Part I, Art. XI, and later in the Sixth Amendment to the United States Constitution. As applied to this case, in which respondent made numerous anxious inquiries of the Postal Inspectors concerning whether he would be indicted, in which the delay caused substantial prejudice to the respondent, and in which the Government has offered no justification for the delay, the right to speedy justice should be honored.

If that right is not honored in a case of this kind, the basic values which the Framers intended to protect by the Sixth Amendment’s guarantee of a speedy trial, and which motivated Congress to enact the Speedy Trial Act of 1974, will become nothing more than managerial considerations for the prosecutor to manipulate.

I respectfully dissent.

       The report indicated that the person to whom respondent admitted selling five guns had told Government agents that respondent had actually-sold him eight guns which he, in turn, had sold to one Martin Koehnken. The report also indicated that Koehnken had sold three of these guns to undercover federal agents and that a search of his house had uncovered four others. Finally the report stated that the eighth gun was sold by one David Northdruft (or Northdurft) to Government agents, and that Northdruft claimed Koehnken had sold him the gun.
      At the hearing on the motion to dismiss, respondent for the first time admitted that he had possessed and sold eight guns..

       The only contrary evidence came from respondent’s purchaser who told the Government investigators that he knew the guns were “hot.”

       In March 1975, the Inspector learned of another person who claimed to have purchased a gun from respondent. App. 18. At the hearing the parties disagreed as to whether this evidence would have been admissible since it did not involve any of the guns to which the indictment related. Id., at 9-10. In any event, the Assistant United States Attorney stated that the decision to prosecute was made before this additional piece of evidence was received. Id., at 19.

       Respondent admitted that he had not mentioned Stewart to the Postal Inspector when he was questioned about his source of the guns. He explained that this was because Stewart “was a bad tomato” and “was liable to take a shot at me if I told [on] him.” Id.., at 13. Respondent also conceded that he did not mention either his brother’s or Stewart’s illness or death to the Postal Inspector on the several occasions in which respondent called the Inspector to inquire about the status of the probe.

       The Inspector’s report had stated that there was no evidence establishing the son’s responsibility for the thefts.

       The court unanimously reversed the dismissal of a fourth count of the indictment charging respondent with dealing in firearms without a license since respondent had not alleged that the missing witnesses could have provided exculpatory evidence on this charge.

       In addition to challenging the Court of Appeals’ holding on the constitutional issue, the United States argues that the District Court should have deferred action on the motion to dismiss until after trial, at which time it could have assessed any prejudice to the respondent in light of the events at trial. This argument, however, was not raised in the District Court or in the Court of Appeals. Absent exceptional circumstances, we will not review it here. See, e. g., Duignan v. United States, 274 U. S. 195, 200 (1927); Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 330 (1967).
      At oral argument, the Government seemed to suggest that its failure to raise the procedural question in its brief in the Court of Appeals should be excused because the proceedings in that court were “skewed” by the fact that the District Court had based its dismissal solely on Fed. Rule Crim. Proc. 48 (b), and because the issue was raised by the Government in its petition for rehearing. Tr. of Oral Arg. 7-8, 51. But even assuming that the basis for the District Court’s dismissal could have “skewed” appellate proceedings regarding the procedural question, the fact is that the opening paragraph of the argument in the Government’s brief below recognized that the only issue before the court was a due process question, and the remainder of the brief treated that question on the merits. And even after the Court of Appeals issued its decision based solely on the Due Process Clause, the Government’s petition for rehearing did not squarely raise the procedural issue as an alternative ground for rehearing the case en banc.

        Marion also holds that Fed. Rule Crim. Proe. 48 (b), which permits district courts to dismiss indictments due to preindictment or postindictment delay, is “limited to post-arrest situations.” 404 U. S., at 319. Since respondent was not arrested until after he was indicted, the District Court plainly erred in basing its decision on this Rule.

       ABA Code of Professional Responsibility DR 7-103 (A) (1969); ABA Project on Standards for Criminal Justice, The Prosecution Function § 3.9 (App. Draft 1971).

       To the extent that the period between accusation and trial has been strictly limited by legislative action, see, e. g., Speedy Trial Act of 1974, 88 Stat. 2076, 18 U. S. C. §3161 et seq. (1970 ed., Supp. V), compelling immediate prosecutions upon probable cause would not add to the time during which defendants stand accused, but would create a risk of guilty persons escaping punishment simply because the Government was unable to move from probable cause to guilt beyond a reasonable doubt in the short time available to it. Even absent a statute, of course, the Speedy Trial Clause of the Sixth Amendment imposes restraints on the length of post-accusation delay.

       Cf. United States v. Watson, 423 U. S. 411, 431 (1976) (Powell, J., concurring) (“Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury”).

       Defendants also would be adversely affected by trials involving less than all of the criminal acts for which they are responsible, since they likely would be subjected to multiple trials growing out of the same transaction or occurrence.

       See also Hoffa v. United States, 385 U. S. 293, 310 (1966), quoted in United States v. Marion, 404 U. S., at 325 n. 18:
      “There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

       In addition, if courts were required to decide in every case when the prosecution should have commenced, it would be necessary for them to trace the day-by-day progress of each investigation. Maintaining daily records would impose an administrative burden on .prosecutors, and reviewing them would place an even greater burden on the courts. See also United States v. Marion, supra, at 321 n. 13.

       See, e. g., The Prosecution Function, supra, n. 9, at § 3.9 (b):

       Of course, in this case further investigation proved unavailing and the United States Attorney ultimately decided to prosecute based solely on the Inspector’s report. But this fortuity cannot transform an otherwise permissible delay into an impermissible one.

       In Marion we noted with approval that the Government conceded that a “tactical” delay would violate the Due Process Clause. The Government renews that concession here, Brief for United States 32, and expands it somewhat by stating: “A due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution,- suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense,” id., at 32-33, n. 25. As the Government notes, however, there is no evidence of recklessness here.

       See also Pet. for Cert. 4, 8; Brief for United States 3, 8, 38; Tr. of Oral Arg. 4, 7, 10, 47.

       Professor Amsterdam has catalogued some of the noninvestigative reasons for delay:
      “[P]roof of the offense may depend upon the testimony of an undercover informer who maintains his ‘cover’ for a period of time before surfacing to file charges against one or more persons with whom he has dealt while disguised. ... [I]f there is more than one possible charge _ against a suspect, some of them may be held back pending the disposition of others, in order to avoid the burden upon the prosecutor’s office of handling charges that may turn out to be unnecessary to obtain the degree of punishment that the prosecutor seeks. There are many other motives for delay, of course, including some sinister ones, such as a desire to postpone the beginning of defense investigation, or the wish to hold a ‘club’ over the defendant.
      “Additional reasons for delay may be partly or completely beyond the control of the prosecuting authorities. Offenses may not be immediately reported; investigation may not immediately identify the offender; an identified offender may not be immediately apprehendable. . . . [A]n indictment may be delayed for weeks or even months until the impaneling of the next grand jury. It is customary to think of these delays as natural and inevitable . . . but various prosecutorial decisions — such as the assignment of manpower and priorities among investigations of known offenses — may also affect the length of such delays.” Speedy Criminal Trial: Rights and Remedies, 27 Stan. L. Rev. 525, 527-728 (1975).
      See also Dickey v. Florida, 398 U. S. 30, 45-46, n. 9 (1970) (Brennan, J., concurring).

       It is a settled rule of this Court that we will not review concurrent findings of fact by two courts “ 'in the absence of a very obvious and exceptional showing of error.’ ” Berenyi v. Immigration Director, 385 U. S. 630, 635, citing Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275. Mr. Justice Jackson has called this a “seasoned and wise rule . . . .” Comstock v. Group of Investors, 335 U. S. 211, 214.

       An examination of the transcript of the District Court hearing reveals that the Government produced no evidence as to why the indictment was delayed. The Government stipulated that it proceeded before the grand jury only on evidence collected some 17 months before the presentation and that no additional evidence had caused it to proceed. Although the Court of Appeals surmised that “[n]o reason existed for the delay except a hope on the part of the Government that others might be discovered who may have participated in the theft[s) . . . ,” 532 F. 2d, at 61, even this assumption is not borne out by the record o-f the District Court hearing. Although not under oath, the prosecuting attorney indicated that the Government theorized that the guns in question came from the respondent’s son, who worked at a freight terminal and would have had access to the mails. Yet even this theory was never shown to be the cause of the delay. Not even the prosecuting attorney stated as much.


author: Mr. Chief Justice Burger Mr. Justice Brennan, Mr. Justice Stevens,

text:
    LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK v. CUNNINGHAM et al.
    No. 76-260.
    Argued February 28-March 1, 1977
    Decided June 13, 1977

      Irving Galt, Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, and Mark C. Rutzick, Assistant Attorney General.

      Michael E. Tigar argued the cause for appellees. With him on the brief were Edward Bennett Williams and Harold Ungar.

        Burt Neuborne, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

This appeal presents the question whether a political party officer can be removed from his position by the State of New York and barred for five years from holding any other party or public office, because he has refused to waive his constitutional privilege against compelled self-incrimination.

(1)

Under § 22 of the New York Election Law, an officer of a political party may be subpoenaed by a grand jury or other authorized tribunal and required to testify concerning his conduct of the party office he occupies. If the officer refuses to answer any question, or if he declines to waive immunity from the use of his testimony against him in a later prosecution, the statute immediately terminates his party office and prohibits him from holding any other party or public office for a period of five years.

In December 1975, appellee Patrick J. Cunningham (hereafter appellee) was subpoenaed pursuant to § 22 to appear and testify before a special grand jury authorized to investigate his conduct in the political offices he then held, which consisted of four unsalaried elective positions in the Democratic Party of the State of New York. Appellee moved to quash the subpoena in the state courts, arguing in part that § 22 violated his federal constitutional right to be free of compelled self-incrimination; his motion was denied. In re Cunningham v. Nadjari, 51 App. Div. 2d 927, 383 N. Y. S. 2d 311, aff’d, 39 N. Y. 2d 314, 347 N. E. 2d 915 (1976). On April 12, 1976, he appeared before the grand jury in response to the subpoena. Appellee refused to sign a waiver of immunity form which would have waived his constitutional right not to be compelled to incriminate himself. Because § 22 is self-executing, appellee’s refusal to waive his constitutional immunity automatically divested him of all his party offices and activated the five-year ban on holding any public or party office.

The following day, appellee commenced this action in the United States District Court for the Southern District of New York. After hearing, the District Judge entered a temporary restraining order against enforcement of § 22. A three-judge court was then convened, and that court granted appellee declaratory and permanent injunctive relief against enforcement of § 22 on the ground that it violated appellee’s Fifth and Fourteenth Amendment rights. We noted probable jurisdiction, 429 U. S. 893 (1976). We affirm.

(2)

We begin with the proposition that the Fifth Amendment privilege against compelled self-incrimination protects grand jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding. See, e. g., United States v. Washington, ante, at 186-187. Moreover, since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution. Malloy v. Hogan, 378 U. S. 1, 11 (1964). In either situation the witness may “refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Lefkowitz v. Turley, 414 U. S. 70, 78 (1973).

Thus, when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution. In Garrity v. New Jersey, 385 U. S. 493 (1967), for example, police officers under investigation were told that if they declined to answer potentially incriminating questions they would be removed from office, but that any answers they did give could be used against them in a criminal prosecution. We held that statements given under such circumstances were made involuntarily and could not be used to convict the officers of crime.

Similarly, our cases have established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself. In Gardner v. Broderick, 392 U. S. 273 (1968), a police officer appearing before a grand jury investigating official corruption was subject to discharge if he did not waive his Fifth Amendment privilege and answer, without immunity, all questions asked of him. When he refused, and his employment was terminated, this Court held that the officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment; the privilege against compelled self-inerimination could not abide any “attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment.” Id., at 279. Accord, Sanitation Men v. Sanitation Comm’r, 392 U. S. 280 (1968). At the same time, the Court provided for effectuation of the important public interest in securing from public employees an accounting of their public trust. Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. Gardner, supra, at 278-279.

We affirmed the teaching of Gardner more recently in Lefkowitz v. Turley, supra, where two architects who did occasional work for the State of New York refused to waive their Fifth Amendment privilege before a grand jury investigating corruption in public contracting practices. State law provided that if a contractor refused to surrender his constitutional privilege before a grand jury, his existing state contracts would be canceled, and he would be barred from future contracts with the State for five years. The Court saw no constitutional distinction between discharging a public employee and depriving an independent contractor of the opportunity to secure public contracts; in both cases the State had sought to compel testimony by imposing a sanction as the price of invoking the Fifth Amendment right.

These cases settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized. It is true, as appellant points out, that our earlier cases were concerned with penalties having a substantial economic impact. But the touchstone of the Fifth Amendment is comjpulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids.

(3)

Section 22 confronted appellee with grave consequences solely because he refused to waive immunity from prosecution and give self-incriminating testimony. Section 22 is therefore constitutionally indistinguishable from the coercive provisions we struck down in Gardner, Sanitation Men, and Turley. Appellee’s party offices carry substantial prestige and political influence, giving him a powerful voice in recommending or selecting candidates for office and in other political decisions. The threatened loss of such widely sought positions, with their power and perquisites, is inherently coercive. Additionally, compelled forfeiture of these posts diminishes appellee’s general reputation in his community.

There are also economic consequences; appellee’s professional standing as a practicing lawyer would suffer by his removal from his political offices under these circumstances. Further, § 22 bars appellee from holding any other party or public office for five years. Many such offices carry substantial compensation. Appellant argues that appellee has no enforceable property interest in future office, but neither did the architects in Turley have an enforceable claim to future government contracts. Nevertheless, we found that disqualification from eligibility for such contracts was a substantial economic burden. In assessing the coercion which § 22 exerts, we must take into account potential economic benefits realistically likely of attainment. Prudent persons weigh heavily such legally unenforceable prospects in making decisions; to that extent, removal of those prospects constitutes economic coercion.

Section 22 is coercive for yet another reason: It requires appellee to forfeit one constitutionally protected right as the price for exercising another. See Simmons v. United States, 390 U. S. 377, 394 (1968). As an officer in a private political party, appellee is in a far different position from a government policymaking official holding office at the pleasure of the President or Governor. By depriving appellee of his offices, § 22 impinges on his right to participate in private, voluntary political associations. That right is an important aspect of First Amendment freedom which this Court has consistently found entitled to constitutional protection. Kusper v. Pontikes, 414 U. S. 51 (1973); Williams v. Rhodes, 393 U. S. 23 (1968).

Appellant argues that even if § 22 is violative of Fifth Amendment rights, the State’s overriding interest in preserving public confidence in the integrity of its political process justifies the constitutional infringement. We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need. E. g., Lefkowitz v. Turley, 414 U. S., at 78-79. Government has compelling interests in maintaining an honest police force and civil service, but this Court did not permit those interests to justify infringement of Fifth Amendment rights in Garrity, Gardner, and Sanitation Men, where alternative methods of promoting state aims were no more apparent than here.

(4)

It may be, as appellant contends, that “[a] State forced to choose between an accounting from or a prosecution of a party officer is in an intolerable position.” Brief for Appellant 12-13. But this dilemma is created by New York’s transactional immunity law, which immunizes grand jury witnesses from prosecution for any transaction about which they testify. The more limited use immunity required by the Fifth Amendment would permit the State to prosecute appellee for any crime of which he may be guilty in connection with his party office, provided only that his own compelled testimony is not used to convict him. Once proper use immunity is granted, the State may use its contempt powers to compel testimony concerning the conduct of public office, without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources.

Accordingly, the judgment is

Affirmed.

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

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring in part.

I join the Court’s judgment, for the reasons stated in Parts (1), (2), and (3) of its opinion. I cannot, however, join Part (4), because I continue to believe that “the Fifth Amendment privilege against self-incrimination requires that any jurisdiction that compels a man to incriminate himself grant him absolute immunity under its laws from prosecution for any transaction revealed in that testimony.” Piccirillo v. New York, 400 U. S. 548, 562 (1971) (Brennan, J., dissenting). See also Kastigar v. United States, 406 U. S. 441, 462 (1972) (Douglas, J., dissenting); id., at 467 (Marshall, J., dissenting). Moreover, even on the Court’s assumption that a lesser immunity is sufficient to satisfy the requirements of the Fifth Amendment, I question the propriety of the Court’s suggestion that the New York Legislature’s decision to grant additional protection to the Fifth Amendment rights of grand jury witnesses was somehow contrary to the State’s best interests.

Mr. Justice Stevens,

dissenting.

The First Amendment protects the individual’s right to speak and to believe in accordance with the dictates of his own conscience. But if he believes in peace at any price and speaks out against a strong military, the President may decide not to nominate him for the office of Secretary of Defense. If he already occupies a comparable policymaking office, the President may remove him as a result of his exercise of First Amendment rights. The fact that the Constitution protects the exercise of the right does not mean that it also protects the speaker’s “right” to hold high public office.

The Fifth Amendment protects the individual’s right to remain silent. The central purpose of the privilege against compulsory self-incrimination is to avoid unfair criminal trials. It is an expression of our conviction that the defendant in a criminal case must be presumed innocent, and that the State has the burden of proving guilt without resorting to an inquisition of the accused.

Just as constitutionally protected speech may disclose a valid reason for terminating the speaker’s employment, so may constitutionally protected silence provide a valid reason for refusing or terminating employment in certain sensitive public positions. Thus a person nominated to an office which may not be filled without the consent of the Senate could exercise his right not to incriminate himself during questioning by a Senate committee, but no one would doubt the Senate’s constitutional power to withhold its consent for that very reason. Nor can there be any doubt concerning the President’s power to discharge any White House aide who might assert his Fifth Amendment privilege in response to a charge that he had used his office to conceal wrongdoing or to solicit illegal campaign contributions.

I see no reason why there should be any greater doubt concerning a state governor’s power to discharge an appointed member of his personal staff who asserts his Fifth Amendment privilege before a grand jury investigating accusations of influence peddling in state government. And since a constitutional limitation on the power of the “government,” see ante, at 806, applies equally to the legislature and the executive, a statutory restriction is no more objectionable than an executive order.

My comments thus far have related to policymaking officials who seek or occupy positions which have no exact counterpart in the private sector of the economy. In our democracy, their power to govern is ultimately derived from, and dependent upon, the sanction of the citizenry they serve. Their performance in office not only must satisfy high standards of competence and efficiency but must also inspire confidence in the integrity of their leadership. For that reason, conditions may appropriately be attached to the holding of high public office that would be entirely inappropriate for the vast majority of government employees whose work is not significantly different from that performed in the private sector.

The Court has decided in the past that workers such as sanitation men employed by a state-chartered municipality may not be threatened with the loss of their livelihood in order to compel them to waive their privilege against self-incrimination. Neither that decision, nor any in its line, controls this case. For rules which protect the rights of government workers whose jobs are not fundamentally different from positions in other areas of society are not automatically applicable to policymaking officials of government.

Appellee Cunningham (hereinafter appellee) is a policymaking official occupying a sensitive position in the government of the State of New York. He is chairman of the State Democratic Committee and of the Bronx County Democratic Executive Committee. By virtue of holding those party positions he performs several important statutory offices for the State of New York. If “heed is to be given to the realities of political life, [he is one of] the instruments by which government becomes a living thing.” Nixon v. Condon, 286 U. S. 73, 84. The leaders of a major political party “are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly.” Id., at 88.

The State has a legitimate interest, not only in preventing actual corruption, but also in avoiding the appearance of corruption among those it favors with sensitive, policy-making office. If such a person wishes to exercise his constitutional right to remain silent and refuses to waive his privilege against compulsory self-incrimination, I see no reason why the State should not have the power to remove him from office.

I recognize that procedures are available by which the State may compel any of its employees to render an accounting of his or her office in exchange for a grant of immunity. But the availability of that alternative does not require us to conclude that our highest public officers may refuse to respond to legitimate inquiries and remain in office unless they are first granted immunity from criminal prosecution. The Fifth Amendment does not require the State to pay such a price to effect the removal of an officer whose claim of privilege can only erode the public's confidence in its government.

The New York statute, if enforced, will require the state chairman to make a choice between silence and public service. Appellee was on notice on this possibility when he accepted his offices. He has an unquestioned constitutional right to choose either alternative. The choice may indeed be a difficult one for him to make. In constitutional terms, however, I see no difference between his choice and that confronted by many other public-spirited citizens who are at once asked to serve their country and to respond publicly to any suggestion of wrongdoing that may be advanced by any hostile or curious witness. The fact that such a choice may be difficult is not a reason for saying that the State has no power to require an officeholder or officeseeker to make it.

I respectfully dissent.

       “If any party officer shall, after lawful notice of process, wilfully refuse or fail to appear before any court or judge, grand jury, legislative committee, officer, board or body authorized to conduct any hearing or inquiry concerning the conduct of his party office or the performance of his duties, or having appeared, shall refuse to testify or answer any relevant question, or shall refuse to sign a waiver of immunity against subsequent criminal prosecution, his term or tenure of office shall terminate, such office shall be vacant and he shall be disqualified from holding any party or public office for a period of five years.” N. Y. Elec. Law § 22 (McKinney 1964).
      New York Election Law § 2 (9) (McKinney 1964) defines a party officer as “one who holds any party position or any party office whether by election, appointment or otherwise.”

       Appellee was chairman of the State Democratic Committee and the Bronx County Democratic Executive Committee, and a member of the Executive Committee of the New York State Democratic Committee and the Bronx County Democratic Executive Committee. We are advised that appellee has recently resigned as chairman of the state organization. He retains his other party offices.

       In the absence of an effective waiver, New York law would have entitled appellee to transactional immunity from prosecution on all matters about which he testified. N. Y. Crim. Proc. Law §§ 50.10, 190.40, 190.45 (McKinney 1971 and Supp. 1976-1977). As appellant concedes, however, Tr. of Oral Arg. 4r-5, and as the record reflects, the State also insisted on a waiver of the more limited use immunity which we have held essential to protect Fifth Amendment rights. Kastigar v. United States, 406 U. S. 441 (1972).
      The waiver form which appellee’s counsel represents is presented to grand jury witnesses waives “all immunity and privileges which I would otherwise obtain under the provisions of the Constitution of the United States and of the State of New York” and further “consent[s] to the use against me of the testimony so given . . . upon any criminal trial, investigation, prosecution or proceeding.” McKinney’s Forms for the Criminal Procedure Law § 190.45, Form 1 (1971). See N. Y. Crim. Proc. Law § 190.45. Appellee’s refusal to sign this waiver form, pressed on him immediately before talcing the oath, was in these circumstances an effective assertion of his Fifth Amendment privilege.
      Of course, New York’s procedure in this regard is not constitutionally required. Rather than permit an assertion of the Fifth Amendment privilege to confer immunity with respect to all matters testified to before the grand jury, New York could, if it chose, require a witness to assert his constitutional privilege to the specific questions • he deems potentially incriminating, withholding constitutional use immunity until the validity of the assertion is upheld.

       That appellee’s refusal to waive immunity and answer questions concerning his conduct of office may have already damaged his reputation and standing is irrelevant to the issues in this case; it is inescapable that public judgments are often made on such factors.

         Baxter v. Palmigiano, 425 U. S. 308 (1976), is not to the contrary. That case involved an administrative disciplinary proceeding in which the respondent was advised that he was not required to testify, but that if he chose to remain silent his silence could be considered against him. Baxter did no more than permit an inference to be drawn in a civil case from a party’s refusal to testify. Respondent’s silence in Baxter was only one of a number of factors to be considered by the finder of fact in assessing a penalty, and was given no more probative value than the facts of the case warranted; here, refusal to waive the Fifth Amendment privilege leads automatically and without more to imposition of sanctions.

       It is often incorrectly assumed that whenever an individual right is sufficiently important to receive constitutional protection, that protection implicitly guarantees that the exercise of the right shall be cost free. Nothing could be further from the truth. The right to representation by counsel of one’s choice, for example, may require the defendant in a criminal case to pay a staggering price to employ the lawyer he selects. Insistence on a jury trial may increase the cost of defense. The right to send one’s children to a private school, Meyer v. Nebraska, 262 U. S. 390, may be exercised only by one prepared to pay the associated tuition cost.

       E. Griswold, The Fifth Amendment Today 1-8 (1955); L. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968); Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1935). The privilege has engendered a great deal of legal scholarship over the years. See Dean Griswold’s thoughtful review of the literature and of his own writings in The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960). See also Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 706-708 (1968).

       See, e. g., Scott v. Philadelphia Parking Auth., 402 Pa. 151, 154, 166 A. 2d 278, 280-281 (1960); Mitchell v. Chester Housing Auth., 389 Pa. 314, 328, 132 A. 2d 873, 880 (1957).

       Note, A Constitutional Analysis of the Spoils System, 57 Iowa L. Rev. 1320, 1321 n. 12 (1972); Note, 17 Vill. L. Rev. 750, 753-754 (1972); Note, 26 Vand. L. Rev. 1090, 1092 n. 12 (1973).
      A line of cases in the Seventh Circuit has addressed the distinction between policymaking and nonpolicymaking state employees, Indiana State Employees Assn., Inc. v. Negley, 501 F. 2d 1239 (1974); Adams v. Walker, 492 F. 2d 1003, 1007 (1974); Illinois State Employees Union, Council 34 v. Lewis, 473 F. 2d 561, 574 (1972), cert. denied, 410 U. S. 928; Gould v. Walker, 356 F. Supp. 421 (ND Ill. 1973). See Pickering v. Board of Education, 391 U. S. 563, 570, and n. 3.

       See Orloff v. Willoughby, 345 U. S. 83, 90-92; Napolitano v. Ward, 457 F. 2d 279 (CA7 1972).

        Sanitation Men v. Sanitation Comm’r, 392 U. S. 280.

        Lefkowitz v. Turley, 414 U. S. 70; Gardner v. Broderick, 392 U. S. 273; Garrity v. New Jersey, 385 U. S. 493.

       Cf. Elrod v. Burns, 427 U. S. 347, 367-368 (plurality opinion); Sugarman v. Dougall, 413 U. S. 634, 642-643; United Public Workers v. Mitchell, 330 U. S. 75, 115, 122-123 (Douglas, J., dissenting in part); Myers v. United States, 272 U. S. 52, 240-241 (Brandeis, J. dissenting); Indiana State Employees Assn., Inc. v. Negley, supra; Mow Sun Wong v.
        Hampton, 500 F. 2d 1031, 1040 (CA9 1974), aff’d, 426 U. S. 88, 95-96; Leonard v. Douglas, 116 U. S. App. D. C. 136, 321 F. 2d 749 (1963).

       Appellee selects nominees for commissioner of the State Board of Elections which administers New York elections, N. Y. Elec. Law § 468 (McKinney Supp. 1976-1977). He has similar powers with respect to local election officers, §§31, 40, 45 (McKinney 1964). The committees he chairs have the power to designate candidates for office in party primary elections, § 131 (2), to fill vacancies which occur in the party slate in Bronx County, §§ 131, 140, and to nominate Democratic electors for the offices of President and Vice President of the United States, § 131 (1).

       See Buckley v. Valeo, 424 U. S. 1, 25-27. To the extent that it legitimizes the Government’s concern with the integrity of the election process, Buckley is particularly apposite here. The majority of the appellee’s statutory powers concern the administration and enforcement of New York’s election laws.

       Of course, it may not do so because it wishes to punish him for the exercise of his right, or as a substitute punishment for the crimes of which he might be suspected. But the State does have a legitimate interest in the integrity, and in the appearance of integrity, of those serving in its governing core. Cf. In re Daley, 549 F. 2d 469, 474-477 (CA7 1977).
      Appellee’s removal from a statutorily recognized state political office does not deprive him of his right to associate for political reasons, see ante, at 807-808. The impact on this right is surely no more significant than the impact of the statute on his privilege against compulsory self-incrimination. For § 22 leaves appellee free to participate in Democratic Party political activities in all the capacities recognized as protected by our right-to-associate cases.
      Nor does this case present the question whether the imposition of the five-year ban on holding state office contained in § 22 may be invalid as a penalty.

       The failure to tender immunity was the critical missing element which invalidated the discharges of the policeman in Gardner v. Broderick, 392 U. S. 273, and the sanitation men in Sanitation Men v. Sanitation Comm’r, 392 U. S. 280, 284-285:
      “If appellant, a policeman, had refused to answer questions specifically, directly, and narrowfy relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.” Gardner v. Broderick, supra, at 278.
      I recognize that Gardner v. Broderick and Garrity v. New Jersey, 385 U. S. 493, make it clear that law enforcement officers are indistinguishable from other government employees as far as the privilege against compulsory self-incrimination is concerned. In view of the large measure of state power and public trust we grant our police, I am not sure that I would have joined those decisions. But extension of the largest measure of the Fifth Amendment privilege to the police does not require its further extension to this case. See supra, at 812 (text to n. 7).

       Section 22 was enacted in 1949, years before appellee gained his chairmanships.