Schick v. Reed



419 U.S. 256

Schick v. Reed


No. 73-5677 Argued: October 23, 1974 --- Decided: December 23, 1974
Petitioner, sentenced to death, under Art. 118 of the Uniform Code of Military Justice, by a court-martial for murder, attacked the validity of a Presidential commutation to life imprisonment (under which petitioner had served 20 years) conditioned on petitioner's never being paroled. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, additionally rejecting petitioner's contention that this Court's intervening decision in Furman v. Georgia, 408 U.S. 238, required that petitioner be resentenced to a life term with the possibility of parole, the alternative punishment for murder under Art. 118.

Held: The conditional commutation of petitioner's death sentence was within the President's powers under Art. II, § 2, cl. 1, of the Constitution to "grant Reprieves and Pardons for Offenses against the United States." Pp. 260-268.

(a) The executive pardoning power under the Constitution, which has consistently adhered to the English common law practice, historically included the power to commute sentences on conditions not specifically authorized by statute. United States v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307. Pp. 260-266.

(b) Since the pardoning power derives from the Constitution alone, it cannot be modified, abridged, or diminished by any statute, including Art. 118, and Furman v. Georgia, supra, did not affect the conditional commutation of petitioner's sentence. Pp. 266-268.

157 U.S.App.D.C. 263, 483 F.2d 1266, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 268. [p257]

419 U.S. 256

Schick v. Reed


No. 73-5677 Argued: October 23, 1974 --- Decided: December 23, 1974
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

In 1960, the President, acting under the authority of Art. II § 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick's sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.

The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner's defense, and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956).

The case was then forwarded to President Eisenhower for final review as required by Art. 71(a) of the UCMJ, [p258] 10 U.S.C. § 871(a). The President acted on March 25, 1960:

[P]ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner's] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U.S.C. 4201 et seq., 10 U.S.C. 3662 et seq., 10 U.S.C. 871 874), or any acts amendatory or supplementary thereof.

App 35. The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment, he would have been eligible for parole consideration in March, 1969; the condition in the President's order of commutation barred parole at any time.

In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District [p259] Court granted the Board of Parole's motion for summary judgment and the Court of Appeals affirmed, unanimously upholding the President's power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2-1 vote petitioner's argument that Furman v. Georgia, 408 U.S. 238, decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. 157 U.S.App.D.C. 263, 483 F.2d 1266. We affirm the judgment of the Court of Appeals.


When the death sentence was imposed in 1954, it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President's action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.

The essence of petitioner's case is that, in light of this Court's holding in Furman v. Georgia, supra, which he could not anticipate, he made a "bad bargain" by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence -- and remained alive -- until the Furman case was decided 18 years after that sentence was originally imposed.

It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner's commutation. However, petitioner's death sentence was not pending in 1972, because it had long since been commuted. [p260] The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that, even in 1960, President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.

In sum, petitioner's claim gives rise to three questions: first, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.


The express power of Art. II, § 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to "grant Reprieves and Pardons . . . except in Cases of Impeachment." Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse. [n1] Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There [p261] were other limits, but they were few in number and similarly specifically defined. [n2]

At the time of the drafting and adoption of our Constitution, it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:

It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.

2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).

Various types of conditions, both penal and nonpenal in nature, were employed. [n3] For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of "banishment." This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject's consent to transportation was necessary, but in most cases he was simply "agreeing" that his life should be spared. Thus, the requirement of consent was a legal fiction, at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely [p262] independent of legislative authorization. [n4] 11 W. Holdsworth, History of English Law 569-575 (1938). In short, by 1787, the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.

The history of our executive pardoning power reveals a consistent pattern of adherence to the English common law practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on § 2, cl. 1, of Art 11. The first report of the Committee on Detail proposed that the pertinent clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." [n5] This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399-400. An effort was made in the Convention to amend what finally emerged as § 2, cl. 1, and is reflected in James Madison's Journal for August 25, 1787, where the following note appears:

Mr. Sherman moved to amend the "power to grant reprieves and pardons" so as to read "to grant reprieves until the next session of the Senate, and pardons with consent of the Senate."

2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911). [p263] The proposed amendment was rejected by a vote of 8-1. Ibid. This action confirms that, as in England in 1787, the pardoning power was intended to be generally free from legislative control.

Later, Edmund Randolph proposed to add the words "‘except cases of treason.'" Madison's description of Randolph's argument reflects familiarity with the English form and practice: "The prerogative of pardon in these [treason] cases was too great a trust." Id. at 626 (emphasis added). Randolph's proposal was rejected by a vote of 8-2, and the clause was adopted in its present form. Thereafter, Hamilton's Federalist No. 69 summarized the proposed § 2 powers, including the power to pardon, as "resembl[ing] equally that of the King of Great Britain and the Governor of New-York." The Federalist No. 69, p. 464 (J. Cooke ed.1961). [n6]

We see, therefore, that the draftsmen of Art. II, § 2, spoke in terms of a "prerogative" of the President, which ought not be "fettered or embarrassed." In light of the English common law from which such language was [p264] drawn, the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not, in themselves, offend the Constitution, but which are not specifically provided for by statute.

The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common law practice:

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

Id. at 160.

Similarly, in Ex parte Wells, 18 How. 307 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon

"upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington."

Id. at 308. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:

[A] President granting such a pardon assumes a power not conferred by the constitution -- that he legislates a new punishment into existence, and sentences [p265] the convict to suffer it, in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences . . . and that of the judiciary to sentence . . . according to them.

Id. at 309. However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:

The real language of [Art. II, § 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. . . .

In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.

* * * *

. . . [T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made.

. . . And a man condemned to be hung cannot be permitted to escape the punishment altogether by pleading that he had accepted his life by duress per minas.

Id. at 314-315. In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually. [p266]

The teachings of Wilson and Wells have been followed consistently by this Court. See, e.g., Ex parte Grossman, 267 U.S. 87 (1925) (upholding a Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute. Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts. See 41 Op.Atty.Gen. 251 (1955). These facts are not insignificant for our interpretation of Art. II, § 2, cl. 1, because, as observed by Mr. Justice Holmes: "If a thing has been practised for two hundred years by common consent, it will need a strong case" to overturn it. Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).


A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by 2, cl. 1, was to allow plenary authority in the President to "forgive" the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were [p267] to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i.e., that parole must be available to petitioner because it is to others. That such an interpretation of 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution, and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.

Petitioner's claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; [n7] it does not offend the Constitution. Similarly, the President's action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner's commutation was "made possible only through the court-martial's imposition of the death sentence." Post at 269-270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide, it could [p268] not affect a conditional commutation which was granted 12 years earlier.

We are not moved by petitioner's argument that it is somehow "unfair" that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier, petitioner's life was undoubtedly spared by President Eisenhower's commutation order of March 25, 1960. Nor is petitioner without further remedies, since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity.


1. See generally 6 W. Holdsworth, History of English Law 203 (1938).

2. See 3 E. Coke, Institutes 233 (6th ed. 1680); 5 J. Comyns, Digest of the Laws of England 230 (5th ed. 1822); J. Chitty, Prerogatives of the Crown 90-91 (1820); 4 W. Blackstone, Commentaries *398.

3. Typical conditions were that the felon be confined at hard labor for a stated period of time, 4 Blackstone, supra, n. 2, at *401, or that he serve in the Armed Forces. 2 D. Hume, Crimes 481 (2d ed. 1819).

4. In Ex parte Wells, 18 How. 307 (1856), this Court expressed the view that legislative authorization was essential to the use of banishment from the realm as a commutable punishment by the English Crown. Id. at 313. However, that conclusion was no more than dictum, and is historically incorrect. Indeed, about the time that Wells was decided, Parliament abolished banishment as a penalty in England, but the Crown retained and continued to exercise the power to annex such conditions to pardons. 11 Holdsworth, supra, n. 1, at 575.

5. 2 M. Farrand, Records of the Federal Convention of 1787, p. 185 (1911).

6. In the Federalist No. 74, Hamilton enlarged on this point:

Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that, without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution: the dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind.

The Federalist No. 74, pp. 500-501 (J. Cooke ed.1961).

7. See, e.g., 21 U.S.C. § 848(c); Mass.Gen.Laws Ann., c. 265, § 2 (1970); Nev.Rev.Stat., Tit. 16, c. 200.030, § 6, c 200.363, § 1(a) (1973).