United States v. Mauro, 436 U.S. 340 (1978)

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the judgment in No. 76-1596 and dissenting in No. 77-52.

I agree with the Court’s conclusion in No. 76-1596 that a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers. As the Court observes, ante at 360:

[T]he issuance of ad prosequendum writs by federal courts has a long history, dating back to the first Judiciary Act. We can therefore assume that Congress was well aware of the use of such writs by the Federal Government to obtain state prisoners, and that, when it used the word "detainer," it meant something quite different from a writ of habeas corpus ad prosequendum.

Indeed, there is simply nothing in the language or legislative history of the Agreement to indicate that Congress intended to cut back in any way on the scope and use of the writ. But for these very reasons, I cannot agree with the result in No. 77-52.

I am first struck by the Court’s interesting approach to statutory construction, the significance of which cannot be lost on even the most casual reader. The Court considers ad prosequendum writs to be "written requests for temporary custody" not because the language of the Agreement compels, or indeed even supports, that result, but rather because the "purposes of the Agreement and the reasons for its adoption by Congress" supposedly lead to that result. Ante at 361. One certainly may find it necessary to resort to interpretative aids other than the language of the statute when difficult questions of construction arise. I would have thought, however, that one would first turn to the language of the statute before resorting to such extra-statutory interpretative aids. See United States v. Kahn, 415 U.S. 143, 151 (1974).

The reason, indeed the necessity, for the Court’s pursuing the opposite course in this case is readily apparent, however. The language of the Agreement simply does not support the Court’s conclusion. The Agreement speaks only of "requests" for custody. In the writ in the instant case, on the other hand, the warden of the Massachusetts Correctional Institution at Walpole was "HEREBY COMMANDED to have the body of RICHARD THOMSON FORD . . . before the Judges of our District Court" on a date certain. App. in No. 77-52, p. 8. The Massachusetts warden would no doubt be surprised to hear that the United States had only "requested" the custody of his prisoner.

But even if the language of the Agreement were broad enough to encompass a writ of habeas corpus, it seems to me that, for the same reasons the Court does not consider a writ to be a "detainer," it cannot view a writ as a request. The writ has a long history, of which Congress must have been aware when it enacted the Agreement. It is inconceivable to me that Congress intended to include the writ in the operation of the Agreement, and thereby make new and different conditions flow from its use, simply by use of the phrase "written request for temporary custody." In fact,the intimations in the legislative history are to the contrary. The Reports of both the House and Senate Judiciary Committees suggest that Congress did not intend the procedures established by the Agreement to be the exclusive means of effecting a transfer of a prisoner for purposes of prosecution.

The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable.

H.R.Rep. No. 91-1018, p. 2 (1970); S.Rep. No. 91-1356, p. 2 (1970). (Emphasis added.) A draft of the Senate Judiciary Committee Report on S. 1 in 1975 also leaves no doubt that many of the Congressmen directly involved in the passage of the Agreement did not think they were in any way limiting the scope or application of the writ. The Report states:

Federal prosecution authorities and all Federal defendants have always had and continue to have recourse to a speedy trial in a Federal court pursuant to 28 U.S.C. § 2241(c)(5), the Federal writ of habeas corpus ad prosequendum. The Committee does not intend, nor does it believe that the Congress, in enacting the Agreement in 1970, intended, to limit the scope and applicability of that writ.

S.Rep. No. 900, p. 984 (1975).

I likewise find myself at a loss to discover exactly what problems the United States has "precipitated" by lodging a detainer against a prisoner and then securing his custody by use of the writ or how this process allows the Government "to circumvent its obligations under the Agreement. . . ." Ante at 362. The Court correctly recognizes that the primary purpose of the Agreement was to provide a solution to the problems encountered by prisoners and prison systems as a result of the lodging of detainers. Ante at 356, 359-360. Upon the mere filing of a detainer by the United States, however, the prisoner clearly has the right under the Agreement to request speedy disposition of the underlying charges if he so desires. Ante at 351. The Government in no way excuses itself from this obligation by later using a writ of habeas corpus to secure the prisoner’s custody. But, by the same token, when the Government chooses not to take advantage of the remaining procedures specified in the Agreement after it files a detainer, I see nothing in the Agreement to suggest that the Government is still bound by all of the conditions which attach when it does choose to take full advantage of those procedures. Neither do I see anything in this procedure which precipitates any of the problems the Agreement was intended to alleviate. And to the extent any of the concerns expressed by the Court relate to the possibility of pretrial delay, the Speedy Trial Act of 1974, 18 U.S.C. § 1361 et seq. (1976 ed.), which creates specific time limits within which all federal defendants must he tried, must lessen, if not totally dissipate, those concerns.

Neither can I shrug off as cavalierly as the Court the Government’s arguments with respect to other related language of the Agreement. The Government argues that, since Art. IV(a) gives the Governor of a sending State the opportunity to disapprove the receiving State’s "request," the term "request" cannot include the writ of habeas corpus, with which a State clearly has no right to refuse to comply. The Court responds that this provision was meant to do no more than preserve existing rights, and if the States did not previously have the right to refuse writs, then this provision cannot be read as providing such authority. Ante at 363. But that is no response at all. The Court is simply picking and choosing which provisions it will apply to the United States and which it will not, in order to consistently construe a statutory scheme which has been made facially inconsistent by the Court’s wrong turn at the outset. I see no justification, and, perhaps more importantly, no standards, for engaging in this sort of gerrymandering of a statute. Rather, if, as the Court admits, this statutory provision was intended only to "preserve" a Governor’s right to refuse a "request," then the only logical and consistent inference therefrom is that the term "request" does not include writs of habeas corpus, which cannot be refused.

The Government also argues that the speedy trial provision of Art. IV(c) applies only to "proceeding[s] made possible by this article. . . ." Since proceedings against a prisoner whose presence has been secured by an ad prosequendum writ are not "made possible" by Art. IV, the speedy trial provision contained therein must not be applicable in this case. The Court’s response to this argument is even less persuasive. It primly refuses to "accept the Government’s narrow reading of this provision," ante at 363-364, but ventures no alternative reading, narrow or broad, which is a defensible alternative to that offered by the Government.

Finally, the Court admits that the Agreement was introduced into Congress by, and, one can fairly surmise given the paucity of legislative history, enacted into law largely at the behest of the Department of Justice, which unequivocally endorsed the legislation. S.Rep. No. 91-1356, supra at 1, 5-6; H.R.Rep. No. 91-1018, supra at 1, 5-6. Thereafter, the Department has consistently taken the position through its actions, though perhaps not its words, that writs of habeas corpus do not fall within the terms of the Agreement. This administrative construction certainly may be entitled to less weight than if it had been accompanied by a contemporaneous, well reasoned explanation. But I would have thought, at least until today, that it was entitled to some weight, particularly in a case such as this, where the language of the statute is not entirely clear on its face or, to the extent it is, supports, rather than undermines, the administrative construction. Cf. United States v. Correll, 389 U.S. 299, 304 (1967).

In sum, I am left with the distinct impression that the Court is stretching to reach the result it considers most desirable from a policy standpoint. Since I see little in the normal tools of statutory construction to justify the interpretation adopted by the Court today, and much in them to condemn it, I dissent from the Court’s disposition of No. 77-52.

* This Report is, of course, not overwhelmingly persuasive, given that it postedates the enactment of the Agreement and concerns a measure which was not even enacted into law at that time. Such so-called "subsequent legislative history" cannot "serve to change the legislative intent of Congress expressed before the Act’s passage." Regional Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974). It does, however, represent the personal views of these legislators, ibid., and thus is not totally without significance, given that 12 of the 15 members of the Committee who issued the draft Report had been members of the same Committee which issued the original Report recommending adoption of the Agreement.