A state statute (enacted after the commission of a murder in the
state) which adds to the punishment of death (that being the
punishment when the murder was committed) the further punishment of
imprisonment by solitary confinement until the execution is, when
attempted to be enforced against the person convicted of that
murder, an
ex post facto law and a sentence inflicting
both punishments upon him is void, and the same is the case with a
statute which confers upon the warden of the penitentiary the power
to fix the day of execution and compels him to withhold the
knowledge of it from the offender, when neither of those provisions
formed part of the law of the state when the offense was
committed.
Any law passed after the commission of the offense for which a
person accused of crime is being tried which inflicts a greater
punishment on the crime than the law annexed to it at the time when
it was committed or which alters the situation of the accused to
his disadvantage is an
ex post facto law within the
meaning of that term as used in the Constitution of the United
States.
No one can be criminally punished in this country except
according to a law prescribed for his government by the sovereign
authority before the
Page 134 U. S. 161
imputed offense was committed or by some law passed afterwards
by which the punishment is not increased.
There being no error in the proceedings of the court below on
the trial and the verdict by which the party was convicted, and the
error commencing only when the sentence or judgment of the court on
the verdict is entered, the court, after deliberation, determines
that the attorney general of the state shall be notified by the
warden of the penitentiary of the precise time when he will release
the prisoner from his custody at least ten days beforehand, and
after doing this, and at that time, he shall discharge the
prisoner.
The case is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an application to this Court by James J. Medley for a
writ of habeas corpus, the object of which is to relieve him from
the imprisonment in which he is held by J. A. Lamping, warden of
the state penitentiary of the State of Colorado. The petitioner is
held a prisoner under sentence of death pronounced by the District
Court of the Second District of the State of Colorado for the
County of Arapahoe. The petition of the prisoner sets forth that an
indictment for the murder of Ellen Medley was found against him by
the grand jury of Arapahoe County on the 5th day of June, 1889;
that the indictment charges petitioner with this murder, which took
place on the 13th day of May of that year; that he was tried in
said district court on the 24th day of September thereafter, and
found guilty by the jury of murder in the first degree; that on the
29th day of November, he was sentenced to be remanded to the
custody of the sheriff of Arapahoe County, and within twenty-four
hours to be taken by said sheriff and delivered to the warden of
the state penitentiary,
Page 134 U. S. 162
to be kept in solitary confinement until the fourth week of the
month of December thereafter, and that then, upon a day and hour to
be designated by the warden, he should be taken from said place of
confinement to the place of execution, within the confines of the
penitentiary, and there hanged be by the neck until he was
dead.
Copies of the indictment, of the verdict of the jury, and of the
sentence of the court are annexed to the petition as exhibits.
The petitioner then sets forth that he was sentenced under the
statute of Colorado approved April 19, 1889, and which went into
effect July 19, 1889, and repealed all acts and parts of former
acts inconsistent therewith, without any saving clause, and that
the crime on account of which the sentence was passed was charged
to be and was actually committed on the 13th day of May of the same
year.
The petitioner enumerates some twenty variances between the
statute in force at the time the crime was committed and that under
which he was sentenced to punishment in the present case, all of
which are claimed to be changes to his prejudice and injury, and
therefore
ex post facto, within the meaning of Section 10,
Article I, of the Constitution of the United States, which declares
that no state shall pass any bill of attainder or
ex post
facto law.
The petitioner applies directly to this Court for the writ of
habeas corpus, instead of to the circuit court of the United
States, because he alleges that court has in a similar case
involving the same points decided adversely to the petitioner.
Upon examining the petition and the accompanying exhibits, an
order was made that the writ should issue and be returnable
forthwith. By an arrangement between the parties and the counsel,
it was agreed that the prisoner need not in person be brought to
Washington. The case was therefore heard on the documents and
transcripts of record presented to the Court, and the only question
argued before us was whether the Act of April 19, 1889, which by
the Constitution of the State of Colorado became operative on the
19th day of July thereafter and under which the sentence complained
of was imposed
Page 134 U. S. 163
by the district court, is an
ex post facto law, so as
to be void under the provision of the Constitution of the United
States on that subject, and, if so, in what respect it is in
violation of that constitutional provision.
This statute will be found in the Session Laws of the state of
Colorado of 1889, p. 118, and is as follows:
"An act relative to the time, place, and manner of infliction of
the death penalty, and to provide means for the infliction of such
penalty, and making it a misdemeanor, punishable by fine or
imprisonment, to disclose or publish proceedings in relation
thereto."
"
Be it enacted by the General Assembly of the State of
Colorado:"
"Section 1. The commissioners of the state penitentiary, at the
expense of the State of Colorado, shall provide a suitable room or
place enclosed from public view within the walls of the
penitentiary, and therein erect and construct, and at all times
have in preparation, all necessary scaffolding, drops, and
appliances requisite for carrying into execution the death penalty,
and the punishment of death must, in each and every case of death
sentence pronounced in this state, be inflicted by the warden of
the said state penitentiary in the room or place and with the
appliances provided as aforesaid, by hanging such convict by the
neck until he shall be dead."
"SEC. 2. Whenever a person convicted of a crime, the punishment
whereof is death, and such convicted person be sentenced to suffer
the penalty of death, the judge passing such sentence shall appoint
and designate in the warrant of conviction a week of time within
which such sentence must be executed. Such week, so appointed,
shall be not less than two nor more than four weeks from the day of
passing such sentence. Said warrant shall be directed to the warden
of the state penitentiary of this state, commanding said warden to
do execution of the sentence imposed as aforesaid upon some day
within the week of time designated in said warrant, and shall be
delivered to the sheriff of the county wherein such conviction is
had, who shall within twenty-four hours thereafter
Page 134 U. S. 164
after proceed to the said penitentiary and deliver such
convicted person, together with the warrant as aforesaid, to the
said warden, who shall keep such convict in solitary confinement
until infliction of the death penalty, and no person shall be
allowed access to said convict, except his attendants, counsel,
physician, a spiritual adviser of his own selection, and members of
his family, and then only in accordance with prison
regulations."
"SEC. 3. The particular day and hour of the execution of said
sentence, within the week specified in said warrant, shall be fixed
by said warden, and he shall invite to be present thereat the
sheriff of the county wherein the conviction was had, the chaplain
and physician of the penitentiary, one practicing surgeon resident
in the state, the spiritual adviser of the convict, if any, and six
reputable citizens of the State of full age. Said warden may also
appoint three deputies or guards to assist him in executing said
sentence, and said warden shall permit no person or persons to be
present at such execution except those provided for in this
section. The time fixed by said warden for said execution shall be
by him kept secret, and in no manner divulged, except privately, to
the persons by him invited to be present as aforesaid, and such
persons so invited shall not divulge such invitation to any person
or persons whomsoever, nor in any manner disclose the time of such
execution. All persons present at such execution shall keep
whatever may transpire thereat secret and inviolate, save and
except the facts certified to by them as hereinafter provided. No
account of the details of any such execution, beyond the statement
of the fact that such convict was on the day in question duly
executed according to law at the state penitentiary, shall in any
manner be published in this state."
"SEC. 4. Upon receiving notice from said warden of such
execution, it shall be the duty of said sheriff to be present and
witness such execution, and shall receive and cause the certified
transcript of record of said execution, hereinafter specified, to
be filed within ten days after said execution in the office of the
clerk of the court in which said conviction was had,
Page 134 U. S. 165
and the said clerk shall record said transcript at length in the
records of the said case. In case of the disability, from illness
or other sufficient cause, of said warden or said sheriff to be
present at such execution, it shall be the duty of their respective
deputies, acting in their place and stead, to execute said warrant,
and to perform all other duties in connection therewith and by this
act imposed upon their principals."
"SEC. 5. Said warden shall keep a book of record, to be known as
'Record of Executions,' in which shall be entered at length the
reports hereinafter specified. Immediately after said execution, a
post mortem examination of the body of the convict shall be made by
the attending physician and surgeon, and they shall enter in said
book of record the nature and extent of such examination, and sign
and certify to the same. Said warden shall also immediately make
and enter in said book a report setting forth the time of such
execution, and that the convict (naming him) was then and there
executed in conformity to the sentence specified in the warrant of
the court (naming such court) to him directed, and in accordance
with the provisions of this act, and shall insert in said report
the names of all the persons who were present and witnessed said
execution, and shall procure each and every of such persons to sign
said report with their full name and place of residence before
leaving the place of execution, and said warden shall thereupon
attach his certificate to said report, certifying to the truth and
correctness thereof, and shall immediately deliver a certified
transcript of said record entry to said sheriff."
"SEC. 6. Any person who shall violate or omit to comply with
section three of this act shall be guilty of a misdemeanor, and
upon conviction thereof be punished by a fine of not less than
fifty dollars, nor more than five hundred dollars, or by
imprisonment in the county jail for not less than thirty days, nor
more than six months."
"SEC. 7. The warden, or other person acting in his stead, who
performs the duties imposed upon him by this act, shall be paid for
his services out of the moneys provided for the maintenance of said
state penitentiary the sum of fifty (50)
Page 134 U. S. 166
dollars, and the said sheriff shall be paid for his services by
the county where such conviction was had the sum of twenty-five
(25) dollars, together with his mileage fees as provided by
law."
"SEC. 8. All acts and parts of acts inconsistent with the
provisions of this act are hereby repealed."
"Approved April 19, 1889."
Section 19 of Article V of the Constitution of the State of
Colorado, as amended November 4, 1884, is as follows:
"No act of the General Assembly shall take effect until ninety
days after its passage, unless in case of emergency (which shall be
expressed in the preamble or body of the act) the General Assembly
shall, by vote of two-thirds of all the members elected to each
house, otherwise direct. No bill except the general appropriation
for the expenses of the government only, introduced in either house
of the General Assembly after the first thirty days of the session,
shall become a law."
We think it follows from this provision that neither the
repealing clause nor any other part of this act was in force prior
to the 19th of July, 1889, and that the crime, having been
committed in May of that year, was to be governed in all
particulars of trial and punishment, by the law then in force,
except so far as the legislature had power to apply other
principles to the trial and punishment of the crime. If these were
conducted and administered under the law of 1889, which became a
law after the commission of the offense, and its provisions, so far
as applied by the court to the case of the prisoner, were such
invasions of his rights as to properly be called
ex post
facto laws, they were void. It is unnecessary to examine all
the points in which, according to the argument for plaintiff, the
new statute was
ex post facto. Therefore we shall notice
only a few of those which appear to us most deserving of attention,
and in doing this we shall compare the new statute with the one
which it superseded and repealed.
Page 134 U. S. 167
The first of these, and perhaps the most important, is that
which declares that the warden shall keep such convict in solitary
confinement until the infliction of the death penalty. The former
law, the act of 1883, contained no such provision. It declared that
every person convicted of murder in the first degree should suffer
death, and every person convicted of murder of the second degree
should suffer imprisonment in the penitentiary for a term of not
less than ten years, which might extend to life, and it declared
that the manner of inflicting the punishment of death should be by
hanging the person convicted by the neck until death at such time
as the court should direct, not less than fifteen nor more than
twenty-five days from the time sentence was pronounced, unless for
good cause the court or governor might prolong the time. The
prisoner was to be kept in the county jail under the control of the
sheriff of the county, who was the officer charged with the
execution of the sentence of the court. Solitary confinement was
neither authorized by the former statute nor was its practice in
use in regard to prisoners awaiting the punishment of death.
This matter of solitary confinement is not, as seems to be
supposed by counsel and as is suggested in an able opinion on this
statute, furnished us by the brief of the counsel for the state, by
Judge Hayt (in the case of Henry Tyson), a mere unimportant
regulation as to the safekeeping of the prisoner, and is not
relieved of its objectionable features by the qualifying language
that no person shall be allowed access to said convict except his
attendants, counsel, physician, a spiritual adviser of his own
selection, and members of his family, and then only in accordance
with prison regulations.
Solitary confinement as a punishment for crime has a very
interesting history of its own in almost all countries where
imprisonment is one of the means of punishment. In a very
exhaustive article on this subject in the American Encyclopedia,
Volume XIII, under the word "Prison," this history is given. In
that article it is said that the first plan adopted, when public
attention was called to the evils of congregating persons in masses
without employment, was the solitary prison connected
Page 134 U. S. 168
with the Hospital San Michele at Rome in 1703, but little known
prior to the experiment in Walnut Street Penitentiary in
Philadelphia in 1787. The peculiarities of this system were the
complete isolation of the prisoner from all human society, and his
confinement in a cell of considerable size, so arranged that he had
no direct intercourse with or sight of any human being and no
employment or instruction. Other prisons on the same plan, which
were less liberal in the size of their cells and the perfection of
their appliances, were erected in Massachusetts, New Jersey,
Maryland, and some of the other states. But experience demonstrated
that there were serious objections to it. A considerable number of
the prisoners fell, after even a short confinement, into a
semi-fatuous condition, from which it was next to impossible to
arouse them, and others became violently insane; others still
committed suicide, while those who stood the ordeal better were not
generally reformed, and in most cases did not recover sufficient
mental activity to be of any subsequent service to the community.
It became evident that some changes must be made in the system, and
the separate system was originated by the Philadelphia Society for
Ameliorating the Miseries of Public Prisons, founded in 1787.
The article then gives a great variety of instances in which the
system is somewhat modified and it is within the memory of many
persons interested in prison discipline that some thirty or forty
years ago the whole subject attracted the general public attention,
and its main feature of solitary confinement was found to be too
severe.
It is to this mode of imprisonment that the phrase "solitary
confinement" has been applied in nearly all instances where it is
used, and it means this exclusion from human associations; where it
is intended to mitigate it by any statutory enactment or by any
regulations of persons having authority to do so, it is by express
exceptions and modifications of the original principle of "solitary
confinement." The statute of Colorado is undoubtedly framed on this
idea. Instead of confinement in the ordinary county prison of the
place where he and his friends reside; where they may, under the
control of the sheriff, see him and visit him; where the sheriff
and his attendants
Page 134 U. S. 169
must see him; where his religious adviser and his legal counsel
may often visit him without any hindrance of law on the subject,
the convict is transferred to a place where imprisonment always
implies disgrace, and which, as this Court has judicially decided
in
Ex Parte Wilson, 114 U. S. 417;
Mackin v. United States, 117 U. S. 348;
Parkinson v. United States, 121 U.
S. 281, and
United States v. De Walt,
128 U. S. 393, is
itself an infamous punishment, and is there to be kept in "solitary
confinement," the primary meaning of which phrase we have already
explained.
The qualifying phrase in this statute is but a small mitigation
of this solitary confinement, for it expressly declares that no one
shall be allowed access to the convict except certain persons, and
these are not admissible unless their access to the prisoner is in
accordance with prison regulations, prescribed by the board of
commissioners of the penitentiary under section 2553 of the general
statutes of Colorado in force since 1877. This section declares
that
"The board of commissioners [of the penitentiary] shall make
such rules and regulations for the government, discipline, and
police of the penitentiary, and for the punishment of persons
confined, not inconsistent with law, as they deem expedient."
What these may be at any particular time is unknown. How far
they may permit access of counsel, physicians, the spiritual
adviser, and the members of his family is a matter in their
discretion, which they exercise by general rules, which may be
altered at any time so as to exclude all these persons, and thus
the prisoner be left to the worst form of solitary confinement.
Even the statutory amelioration is a very limited one. By the
words "his attendants" in the statute is evidently meant the
officers of the prison and subordinates, who must necessarily
furnish him with his food and his clothing, and make inspection
every day that he still exists. They may be forbidden by prison
regulations, however, from holding any conversation with him. The
attendance of the counsel can only be casual, and a very few
interviews, one or two, perhaps, are all that he would have before
his death, and that of the physician not at all, unless he was so
sick as to require
Page 134 U. S. 170
it, and the spiritual adviser of his own selection, and the
members of his family, are all dependent for their opportunities of
seeing the prisoner upon the regulations of the prison. The
solitary confinement, then, which is meant by the statute remains
of the essential character of that mode of prison life as it
originally was prescribed and carried out, to mark them as examples
of the just punishment of the worst crimes of the human race.
The brief of counsel for the prisoner furnishes us with the
statutory history of solitary confinement in the English law. Act
25 Geo. II. c. 37, entitled "An act for better preventing the
horrid crime of murder," is preceded by the following preamble:
"Whereas, the horrid crime of murder has of late been more
frequently perpetrated than formerly, . . . and whereas it is
thereby become necessary that some further terror and peculiar mark
of infamy be added to the punishment of death now by law inflicted
on such as shall be guilty of the said heinous offense,"
then follow certain enactments, the sixth section of which reads
as follows:
"
Be it further enacted . . . that from and after such
conviction, and judgment given thereupon, the jailer of keeper to
whom such criminal shall be delivered for safe custody shall
confine such prisoner to some cell . . . separate and apart from
the other prisoners, and that no person or persons whatsoever,
except the jailer or keeper, or his servants, shall have access to
any such prisoner, without license being first obtained."
This statute is very pertinent to the case before us, as showing
first, what was understood by solitary confinement at that day, and
second that it was considered as an additional punishment of such a
severe kind that it is spoken of in the preamble as "a further
terror and peculiar mark of infamy" to be added to the punishment
of death. In Great Britain, as in other countries, public sentiment
revolted against this severity, and by the statute of 6 and 7
William IV. c. 30, the additional punishment of solitary
confinement was repealed.
The term
ex post facto law, as found in the provision
of the Constitution of the United States, to-wit, that "no state
shall
Page 134 U. S. 171
pass any bill of attainder,
ex post facto law, or law
impairing the obligation of contracts," has been held to apply to
criminal laws alone, and has been often the subject of construction
in this Court. Without making extracts from these decisions, it may
be said that any law which was passed after the commission of the
offense for which the party is being tried is an
ex post
facto law when it inflicts a greater punishment than the law
annexed to the crime at the time it was committed,
Calder v.
Bull, 3 Dall. 386,
3 U. S. 390;
Kring v. Missouri, 107 U. S. 221;
Fletcher v.
Peck, 6 Cranch 87, or which alters the situation of
the accused to his disadvantage, and that no one can be criminally
punished in this country except according to a law prescribed for
his government by the sovereign authority before the imputed
offense was committed, or by some law passed afterwards, by which
the punishment is not increased.
It seems to us that the considerations which we have here
suggested show that the solitary confinement to which the prisoner
was subjected by the statute of Colorado of 1889, and by the
judgment of the court in pursuance of that statute, was an
additional punishment of the most important and painful character,
and is therefore forbidden by this provision of the Constitution of
the United States. Another provision of the statute which is
supposed to be liable to this objection of its
ex post
facto character is found in section three, in which the
particular day and hour of the execution of the sentence within the
week specified by the warrant shall be fixed by the warden, and he
shall invite to be present certain persons named, to-wit, a
chaplain, a physician, a surgeon, the spiritual adviser of the
convict, and six reputable citizens of the State of full age, and
that the time fixed by said warden for such execution shall be by
him kept secret, and in no manner divulged except privately to said
persons invited by him to be present as aforesaid, and such persons
shall not divulge such invitation to any person or persons
whomsoever, nor in any manner disclose the time of such execution,
and section six provides that any person who shall violate or omit
to comply with the requirements of section
Page 134 U. S. 172
three of the act shall be punished by fine or imprisonment. We
understand the meaning of this section to be that within the one
week mentioned in the judgment of the court, the warden is charged
with the power of fixing the precise day and hour when the prisoner
shall be executed; that he is forbidden to communicate that time to
the prisoner; that all persons whom he is directed to invite to be
present at the execution are forbidden to communicate that time to
him, and that in fact the prisoner is to be kept in utter ignorance
of the day and hour when his mortal life shall be terminated by
hanging until the moment arrives when this act is to be done.
Objections are made to this provision as being a departure from
the law as it stood before, and as being an additional punishment
to the prisoner, and therefore
ex post facto.
It is obvious that it confers upon the warden of the
penitentiary a power which had heretofore been solely confided to
the court, and is therefore a departure from the law as it stood
when the crime was committed.
Nor can we withhold our conviction of the proposition that when
a prisoner sentenced by a court to death is confined in the
penitentiary awaiting the execution of the sentence, one of the
most horrible feelings to which he can be subjected during that
time is the uncertainty during the whole of it, which may exist for
the period of four weeks, as to the precise time when his execution
shall take place. Notwithstanding the argument that under all
former systems of administering capital punishment, the officer
appointed to execute it had a right to select the time of the day
when it should be done, this new power of fixing any day and hour
during a period of a week for the execution is a new and important
power conferred on that officer, and is a departure from the law as
it existed at the time the offense was committed, and with its
secrecy must be accompanied by an immense mental anxiety amounting
to a great increase of the offender's punishment.
There are other provisions of the statute pointed out in the
argument of counsel which are alleged to be subject to the same
objection, but we think the two we have mentioned are
Page 134 U. S. 173
quite sufficient to show that the Constitution of the United
States is violated by this statute, as applied to crimes committed
before it came into force.
These considerations render it our duty to order the release of
the prisoner from the custody of the warden of the penitentiary of
Colorado as he is now held by him under the judgment and order of
the court.
A question suggests itself, however, to the Court which is not a
little embarrassing, and which was not presented by counsel in the
argument of the case. This consideration arises from the fact that
there does not seem to be in the record before us any error in the
proceedings of the court on the trial, and the verdict of the jury,
by which the party was convicted of murder in the first degree. It
is only when the sentence or judgment of the court upon that
verdict is entered that the error of the proceedings commences.
When, in the language of the judgment of the court, the prisoner
was ordered to be "kept by the warden of the penitentiary in
solitary confinement until the day of his execution," and when the
knowledge of the day and the hour of his execution was by the
statute to be withheld from him, the Constitution of the United
States was violated, because the additional punishments were
inflicted on him by reason of the direction of the statute, which
we have just seen was an
ex post facto law, and in those
respects void, as being forbidden by the Constitution of the United
States.
If this were a writ of error to the Supreme Court of Colorado,
as
Kring's Case was a writ of error to the Supreme Court
of Missouri, our duty would be plain -- namely to reverse the
judgment for the error found in it and remand the case to the state
court for further proceedings. If such were the case before us, our
duty would be to reverse the judgment and remand the case to the
court below, to deal with the prisoner in the face of the fact that
a verdict of guilty, which was valid and legal, remains unenforced.
But under the writ of habeas corpus, we cannot do anything else
than discharge the prisoner from the wrongful confinement in the
penitentiary under the statute of Colorado invalid as to this
case.
Page 134 U. S. 174
The language of the act of Congress, however, seems to have
contemplated some emergency of the kind now before us. Section 761
of the Revised Statutes declares that the court or justice or judge
before whom the prisoner may be brought by writ of habeas corpus
shall proceed in a summary way to determine the facts of the case
by hearing the testimony and argument, and thereupon to dispose of
the party as law and justice require. What disposition shall we now
make of the prisoner, who is entitled to his discharge from the
custody of the warden of the penitentiary under the order and
judgment of the court, because, within the language of section 753,
he is in custody in violation of the Constitution of the United
States, but who is nevertheless guilty, as the record before us
shows, of the crime of murder in the first degree? We do not think
that we are authorized to remand the prisoner to the custody of the
sheriff of the proper county to be proceeded against, in the court
of Colorado which condemned him, in such a manner as they may think
proper, because it is apparent that while the statute under which
he is now held in custody is an
ex post facto law in
regard to his offense, it repeals the former law, under which he
might otherwise have been punished, and we are not advised whether
that court possesses any power to deal further with the prisoner or
not. Such a question is not before us, because it has not been
acted upon by the court below, and it is neither our inclination
nor our duty to decide what the court may or what it may not do in
regard to the case as it stands. Upon the whole, after due
deliberation, we have come to the conclusion that the Attorney
General of the State of Colorado shall be notified by the warden of
the penitentiary of the precise time when he will release the
prisoner from his custody under the present sentence and warrant at
least ten days beforehand, and after doing this, and at that time,
he shall discharge the prisoner from his custody, and such will be
the order of this Court.
On consideration of the application for the discharge of the
petitioner, James J. Medley, the writ of habeas corpus, directing
J. A. Lamping, Warden of the State Penitentiary
Page 134 U. S. 175
of the State of Colorado at Canon City, Fremont County,
State of Colorado, to produce the body of the said James J. Medley
before this Court, and to certify the cause of his detention and
imprisonment, having been duly issued and served, and the said J.
A. Lamping, warden as aforesaid, having certified that said James
J. Medley is detained in his custody under and by virtue of a writ
issued out of the District Court of Arapahoe County, State of
Colorado, and the cause of said imprisonment having been duly
inquired into by this Court upon the return of the said writ of
habeas corpus heretofore issued herein, and counsel having been
heretofore heard and due consideration having been had,
It is now here ordered by this Court that the imprisonment
of said James J. Medley under said writ issued out of the District
Court of Arapahoe County, State of Colorado, is without authority
of law and in violation of the Constitution of the United States,
and that the said James J. Medley is entitled to have his liberty.
Whereupon it is hereby ordered that the said James J. Medley be,
and he is hereby, discharged from said imprisonment.
It is further ordered that the said J. A. Lamping, warden as
aforesaid, do notify the Attorney General of the State of Colorado
of the day and the hour of the day when he will discharge the said
James J. Medley from imprisonment, and that such notice be given at
least ten days before the release of the prisoner.
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE BRADLEY,
dissenting.
I dissent from the opinion and judgment as above declared. The
substantial punishment imposed by each statute is death by hanging.
The differences between the two as to the manner in which this
sentence of death shall be carried into execution are trifling.
What are they? By the old law, execution must be within twenty-five
days from the day of sentence; by the new, within twenty-eight
days. By the old, confinement
Page 134 U. S. 176
prior to execution was in the county jail; by the new, in the
penitentiary. By the old, the sheriff was the hangman; by the new,
the warden. Under the old, no one had a right of access to the
condemned except his counsel, though the sheriff might, in his
discretion, permit anyone to see him; by the new, his attendants,
counsel, physician, spiritual adviser, and members of his family
have a right of access, and no one else is permitted to see him.
Under the old, his confinement might be absolutely solitary at the
discretion of the sheriff, with but a single interruption; under
the new, access is given to him, as a matter of right, to all who
ought to be permitted to see him. True, access is subject to prison
regulations; so, in the jail, the single authorized access of
counsel was subject to jail regulations. It is not to be assumed
that either regulations would be unreasonable, or operate to
prevent access at any proper time. Surely, when all who ought to
see the condemned have a right of access, subject to the
regulations of the prison, it seems a misnomer to call this
"solitary confinement" in the harsh sense in which this phrase is
sometimes used. All that is meant is that a condemned murderer
shall not be permitted to hold anything like a public reception,
and that a gaping crowd shall be excluded from his presence. Again,
by the old law, the sheriff fixes the hour within a prescribed day;
by the new, the warden fixes the hour and day within a named week.
And these are all the differences which the court can find between
the two statutes, worthy of mention.
Was there ever a case in which the maxim "
de minimis non
curat lex" had more just and wholesome application? Yet, on
account of these differences, a convicted murderer is to escape the
death he deserves, and be turned loose on society. I am authorized
to say that MR. JUSTICE BRADLEY concurs in this dissent.