1. Imprisonment at hard labor, whether in a penitentiary or
elsewhere, is an infamous punishment within the meaning of the
Fifth Amendment, and prosecution for a crime so punishable must be
by indictment or presentment by a grand jury. P.
258 U. S. 435.
Wong Wing v. United States, 163 U.
S. 228, and
Ex parte Wilson, 114 U.
S. 417, followed;
Fitzpatrick v. United States,
178 U. S. 304,
distinguished.
2. Hence, a prosecution in the Juvenile Court of the District of
Columbia for the crime of willfully neglecting or refusing to
provide for the support and maintenance of minor children, defined
by the Act of March 23, 1906, and thereby made punishable by a fine
or by imprisonment at hard labor in the workhouse of the District,
or by both, cannot be by information. P.
258 U. S.
438.
3. It is the punishment which may be, and not that which
actually is, imposed under the statute that determines the right to
prosecute otherwise than through a grand jury. P.
258 U. S.
441.
4. Where an act defining a misdemeanor provides for punishment
by fine or imprisonment at hard labor, the provision as to hard
labor cannot be treated as severable to sustain a prosecution by
information. P.
258 U. S.
441.
276 F. 640 affirmed.
Certiorari to review a judgment of the Court of Appeals of the
District of Columbia which reversed a judgment of the Juvenile
Court of the District sentencing the respondent to six months'
imprisonment in the workhouse for the misdemeanor of willfully
neglecting to support his minor children, in violation of the Act
of March 23, 1906, c. 1131, 34 Stat. 86. The sentence was based on
the verdict of a jury finding respondent guilty of this offense.
The judgment under review directed that the complaint in the
Juvenile Court be dismissed. The Act of March 19, 1906, c. 960, §
12, 34, Stat. 73, creating the Juvenile Court, provided that
prosecutions therein should be on information
Page 258 U. S. 434
of the corporation counsel or his assistant. The Act of June 18,
1912, c. 171, § 8, 37 Stat. 134, conferred upon that court
concurrent jurisdiction with the Supreme Court of the District in
all cases arising under the Act of March 23, 1906,
supra.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question in the case is what procedure, in the prosecution
and conviction for crime, the Fifth Amendment of the Constitution
of the United States makes dependent upon the character of
punishment assigned to the crime.
The amendment provides that
"no person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public
danger. . . ."
The respondent, Moreland, was proceeded against in the Juvenile
Court of the District of Columbia by information, not by
presentment or indictment by a grand jury, for the crime of
willfully neglecting or refusing to provide for the support and
maintenance of his minor children. The statute prescribes the
punishment to be
"a fine of not more than $500 or by imprisonment in the
workhouse of the District of Columbia at hard labor for not more
than twelve months or by both such fine and imprisonment."
Act of March 23, 1906, c. 1131, 34 Stat. 86.
He was tried by a jury and found guilty, and, after certain
proceedings with which we have no concern, he
Page 258 U. S. 435
was sentenced to the workhouse at hard labor for six months.
The Court of Appeals reversed the judgment and remanded the case
to the juvenile court with directions to dismiss the complaint. The
court considered that it was constrained to decide that the
judgment was in violation of the Fifth Amendment, and therefore to
reverse it on the authority of
Wong Wing v. United States,
163 U. S. 228.
The United States resists both the authority and extent of that
case by the citation of others which it asserts modify or overrule
it. A review of it therefore is of initial importance.
Certain statutes of the United States made it unlawful under
certain circumstances for a Chinese laborer to be in the United
States, and provided for his deportation by certain officers, among
others, a commissioner of a United States court. And one of them
(Act of 1892) provided that, if a Chinese person or one of that
descent was "convicted and adjudged to be not lawfully entitled to
be or remain in the United States," he should "be imprisoned at
hard labor for a period not exceeding one year, and thereafter
removed from the United States."
Wong Wing, a Chinese person (there were others arrested, but,
for the purpose of convenience of reference, we treat the case as
being against him only), was arrested and taken before a
commissioner of the Circuit Court for the Eastern District of
Michigan and adjudged to be unlawfully within the United States and
not entitled to remain therein. It was also adjudged that he be
imprisoned at hard labor at and in the Detroit House of Correction
for the period of 60 days.
The court, considering the statutes, said they operated on two
classes -- one which came into the country with its consent, the
other which came in without consent and in disregard of law -- and
that Congress had the constitutional
Page 258 U. S. 436
power to deport both classes and to commit the enforcement of
the law to executive officers.
This power of arrest by the executive officers and the power of
deportation were sustained, but the punishment provided for by the
act, and which was pronounced against Wong Wing -- that is,
imprisonment at hard labor -- was decided to be a violation of the
Fifth Amendment, he not having been proceeded against by
presentment or indictment by a grand jury.
The court noted the argument and the cases cited and sustained
the power of exclusion, but said that, when Congress went further
and inflicted punishment at hard labor, it "must provide for a
judicial trial to establish the guilt of the accused." And this
because such punishment was infamous, and prohibited by the Fifth
Amendment, the conditions prescribed by the amendment not having
been observed. The necessity of their observance was decided
because, to repeat, imprisonment at hard labor was an infamous
punishment. In sanction of the decision,
Ex parte Wilson,
114 U. S. 417,
114 U. S. 428,
was cited and quoted from. The citation was in point. Both
propositions were presented in that case, and both were decided
upon elaborate consideration and estimate of authorities.
See
also Mackin v. United States, 117 U.
S. 348,
117 U. S.
350.
The United States urges against the
Wong Wing case
that, four years after its decision, the question of the infamy
attached to punishments came up for consideration and decision in
Fitzpatrick v. United States, 178 U.
S. 304, and that it (the
Wong Wing case) was
not referred to. The immediate answer is that a case is not
overruled by an omission to mention it. Besides, it was based on
Ex parte Wilson, and that case was cited. The
Wilson case was elaborate in the exposition of the law --
its evolution and extent. The various punishments, or, we may say,
the various imprisonments, to which infamy had been ascribed were
detailed, with citation of cases. In these were included,
Page 258 U. S. 437
as certain, imprisonment in a penitentiary. But it was decided
that the quality of infamy could attach to any imprisonment if
accompanied by hard labor. It was said, and it was necessary to
say, in passing on Wilson's situation, that-
"imprisonment at hard labor, compulsory and unpaid, is, in the
strongest sense of the words, 'involuntary servitude for crime,'
spoken of in the provision of the Ordinance of 1787 and of the
Thirteenth Amendment of the Constitution, by which all other
slavery was abolished."
In other words, it was declared that, if imprisonment was in any
other place than a penitentiary and was to be at hard labor, the
latter gave it character -- that is, made it infamous and brought
it within the prohibition of the Constitution.
There is nothing in
Fitzpatrick v. United States that
gives aid to the contention, which counsel make, that it is the
place of imprisonment -- that is, imprisonment in a penitentiary --
which makes the infamy, the accompaniment of hard labor being but
an incident. It is true, in that case it was said that "the test is
not the imprisonment which is imposed, but that which
may
be imposed under the statute." This manifestly was said to
distinguish the character of the crime as capital, and not to
assign a quality to the punishment. To assign a quality to the
punishment was a necessity in
Wong Wing v. United States
and in
Ex parte Wilson, and it was responded to by
discussions pertinent to it, and by decisions which were required
by it. We can add nothing to the fullness of the discussions or
their adequacy, and the decisions pronounced as their consequence
we are not disposed to overrule. They necessarily determine,
therefore, the present case, and require the affirmance of the
judgment of the Court of Appeals so far as it decides that the
sentence upon Moreland was void because of the inclusion therein of
the punishment of hard labor, he not having been presented or
indicted by a grand jury. And, because of their authority, we do
not review the cases cited by the United States, nor consider that
they can be modified in
Page 258 U. S. 438
accommodation to the practice that is said to exist of creating
workhouses as places of punishment.
Some further comment becomes necessary. An attempt is made to
modify the case or to remove it as authority for that at bar. The
means and pains taken to accomplish it are somewhat baffling to
representation. We have cited the case for the proposition that
imprisonment with the accompaniment of hard labor is an infamous
punishment, made so by the accompaniment of hard labor and declared
illegal because not upon presentment or indictment by a grand
jury.
Doubt is cast upon our right to so cite it, and it is, in
effect, asserted that the infamy of the imprisonment to which Wong
Wing was sentenced was not constituted by the accompaniment of hard
labor, but was the attribute of the imprisonment, the Detroit House
of Correction being, it is said, a penitentiary. And this is
attempted to be established by the assertion of a fact extraneous
to the opinion of the court and the record in the cause. It is
true, certain isolated sentences used by a justice concurring in
part and dissenting in part are referred to as to what the court
must have implied.
The assertion calls for reply. We have relied on the case as
authority, and, regarding it as authority, we have naturally
refrained from the idleness, or, as it may be said, the
ostentation, of general reasoning. We might, indeed, leave the case
to speak for itself to those who may need to refer to its ruling
and the ruling in the present case, but some comment, though it may
not be necessary, is justified.
It is to be kept in mind that the case concerned the
Constitution of the United States, and necessarily had a purpose
beyond its incident and time. Its precept became a part of the
Constitution, and in realization of this, the Court took care that
the grounds of its decisions were neither obscure nor uncertain.
Its opinion demonstrates this, and that there was no
misunderstanding of the points
Page 258 U. S. 439
of counsel nor ambiguity in passing upon them. What was not in
controversy, of course, received no attention, and the infamy of
imprisonment in a penitentiary was not in controversy; that was of
universal acceptance then, as now, and an intimation of its
existence would have been enough to have caused Wong Wing's
delivery from custody on the instant; nor would the United States
have resisted. There was in controversy, however, the question
whether imprisonment in any prison or place at hard labor, as a
sentence for crime, was infamous. Upon that counsel were in
opposition, and it was submitted for decision. The Court contrasted
the contentions.
Wong Wing's was recognized as a claim that his sentence to
imprisonment at
hard labor inflicted an infamous
punishment, and hence conflicted with the Fifth and Sixth
Amendments of the Constitution of the United States, he not having
been presented or indicted by a grand jury.
"On the other hand," the court said,
"it is contended by the government that it has never been
decided by this Court that in all cases where the punishment may be
confinement at hard labor, the crime is infamous, and many cases
are cited from the reports of the state supreme courts where the
constitutionality of statutes providing for summary proceedings,
without a jury trial, for the punishment by imprisonment at hard
labor of vagrants and disorderly persons has been upheld."
The comment was an anticipation of some things that are urged in
this case. At any rate, the contrast of contentions shows
unmistakably upon what the Court's decision was invoked,
* and while it
decided, as we have seen,
Page 258 U. S. 440
that the commissioner had power under the Act of 1892 to order
Wong Wing deported and to sentence him to imprisonment, Congress
could not legally invest the commissioner with power to make hard
labor an adjunct of the imprisonment. It was, in effect, said that
the adjunct made the imprisonment infamous, and beyond the power of
legislation to direct, without making provision "for a judicial
trial to establish the guilt of the accused." Wong Wing was
therefore discharged from custody.
That the place of imprisonment was not considered either
pertinent or determinative is established by the fact that the
Detroit House of Correction was not a penitentiary, nor regarded as
such. It was, and is, what its name implies -- a place of
correction and reformation, not of condemnation to infamy, and it
might be to a perpetual criminal career. Howell's Mich.Stats.
Anno., 2nd ed., c. 430, p. 5915
et seq.; Acts Mich. 1861,
p. 262, Act. No. 164; Compiled Laws of Mich. 1897, c. 76.
It is an institution of the City of Detroit, and the act
creating it designated its use to be "for the confinement,
punishment and reformation of criminals or persons sentenced
thereto. . . ." How this use is regulated and its purpose
accomplished are detailed in too much legislation to be reproduced.
The House of Correction stands in a unique relation to the state
prison, and while it may, under circumstances and in the discretion
of a condemning court, be a place of imprisonment for offenders
that might be committed to the state prison, yet always it is kept
distinct from the state prison. It does not, therefore, make its
use as a place of confinement for other offenses a penitentiary,
with its attachment of infamy. Its purpose is reformation,
instruction in conduct, and diversion from a criminal career. To
make it therefore a penitentiary would defeat the purpose of its
creation.
We have dwelt on this matter at length because we think more is
involved than the power to deport aliens, or
Page 258 U. S. 441
to punish them for illegal entry into the country -- more than
to deliver one from punishment who has defied the orders of a court
that enjoined upon him the manifest duty of supporting his minor
children. It concerns the recognition and enforcement of a
provision of the Constitution of the United States expressing and
securing an important right. And the right at times must be
accorded one whose conduct tempts to a straining of the law against
him.
The ultimate contention of the United States is that the
provision of the Act of March 23, 1906, for punishment by fine or
imprisonment are severable, and that therefore it was error in the
Court of Appeals in holding the act unconstitutional, and in
directing the dismissal of the case instead of sending it back for
further proceedings.
The contention is untenable. It is what sentence can be imposed
under the law, not what was imposed, that is the material
consideration. When an accused is in danger of an infamous
punishment if convicted, he has a right to insist that he be not
put upon trial except on the accusation of a grand jury.
Ex
parte Wilson and Mackin v. United States, supra.
Judgment affirmed.
MR. JUSTICE CLARKE took no part in the consideration and
decision of this case.
* We may quote in corroboration that even the concurring Justice
said the question involved was whether a Chinese person could "be
lawfully convicted and sentenced to
imprisonment at hard
labor for a definite period by a commissioner without
indictment or trial by jury." The italics are the justice's, and we
copy their emphasis as it demonstrates that the fact of
hard
labor was that which determined the case.
MR. JUSTICE BRANDEIS, with whom concurs MR. CHIEF JUSTICE TAFT
and MR. JUSTICE HOLMES, dissenting.
On January 18, 1921, an information, under the Act of March 23,
1906, c. 1131, 34 Stat. 86, was filed against Moreland in the
Juvenile Court of the District of Columbia for willfully neglecting
to provide support for his minor children -- girls aged eight and
thirteen. He was tried by a jury and found guilty. The court
suspended sentence and ordered him to pay each month for their
Page 258 U. S. 442
support the sum of $30. Having failed to make any payment under
this order, Moreland was sentenced on April 19, 1921, to be
committed to the workhouse at hard labor for 6 months, the
superintendent to pay to the mother for the support of the children
fifth cents for each day's hard labor performed by him. Moreland
had insisted that the offense with which he had been charged was an
infamous crime, since the statute prescribes as punishment
imprisonment at hard labor, and he claimed that rights guaranteed
by the Fifth Amendment had been violated, because he had been made
to answer to the charge without having been indicted by the grand
jury. His claim was overruled by the juvenile court. Upon writ of
error, the Court of Appeals of the District, 276 F. 640, relying
upon
Wong Wing v. United States, 163 U.
S. 228, reversed the judgment of the juvenile court and
directed that the complaint be dismissed. The case came here on
writ of certiorari. 257 U.S. 631.
The Fifth Amendment declares: "No person shall be held to answer
for a capital or otherwise infamous crime, unless on a presentment
or indictment of a grand jury. . . ." Whether a crime is infamous
within the meaning of the Fifth Amendment may be determined by the
character of the punishment or by other incidents of the sentence
prescribed.
Ex parte Wilson, 114 U.
S. 417,
114 U. S. 426.
In the
Wong Wing case, the commitment was to an
institution which was named the Detroit House of Correction, but
served also as a state prison or penitentiary. [
Footnote 1] Imprisonment
Page 258 U. S. 443
in a state penitentiary is an infamous punishment whether it be
with or without hard labor.
In re Claasen, 140 U.
S. 200,
140 U. S. 205.
Moreover, the commitment in the
Wong Wing case was not
under sentence of a court or after conviction by a jury. It was by
direction of a commissioner of the United States. The punishment by
imprisonment was thus imposed under an executive order, and hence
was clearly void under the Constitution, whatever its character or
incidents, its duration, or the place of confinement. The question
here involved is different. It is whether the mere fact that the
act prescribes hard labor as an incident of the sentence of
confinement in the workhouse renders the offense (which the statute
describes as a misdemeanor) an infamous crime within the
prohibition of the Fifth Amendment.
The Act of March 23, 1906, declares that any person in the
District of Columbia who shall willfully neglect to provide for his
minor children under the age of 16 in destitute circumstances shall
be guilty of a misdemeanor, and on conviction shall be punished by
a fine of not more than $500 or by imprisonment in the workhouse of
the District at hard labor for not more than twelve months, or by
both such fine and imprisonment. If a fine is imposed, the court
may direct that it be paid
Page 258 U. S. 444
to the wife or other person in whose care the children are. If
the father is confined to the workhouse, the superintendent is
required to pay toward their support a sum equal to fifth cents for
each day's hard labor performed by him. Either before trial or
after conviction, the father may be released upon giving
recognizance for the payment of a weekly allowance for the support
of the children. These provisions may be enforced by proceedings in
the juvenile court, Act of June 18, 1912, c. 171, § 8, 37 Stat.
134, 136, and, if so, they are commenced by information. The
accused is entitled to trial by jury, as the penalty which may be
imposed for the offense charged is a fine of more than fifty
dollars or imprisonment for more than thirty days. Act of March 19,
1906, c. 960, § 12, 34 Stat. 73, 75.
The workhouse of the District of Columbia is at Occoquan in the
State of Virginia. It is an industrial farm of 1150 acres,
bordering on the Occoquan River. On the farm, in healthful and
attractive surroundings, are many small, well equipped buildings,
appropriate for the residence and occupation of the inmates. These
are employed on the premises, partly in agricultural, partly in
industrial, pursuits -- in cultivating hundreds of acres of land
and in clearing, from time to time, more; in fruit orchards and
dairy; in chicken and hog raising; in brick manufacturing and stone
crushing plants; in sawmill operations and a small shipyard; in the
repair and construction of farm implements, of roads, and of
buildings required for the development of the institution, and in
transporting its products by water or otherwise. The work is such
as is ordinarily performed under favorable conditions on farms, in
factories, and in the mechanical trades, and it is not harder. The
eight-hour workday prevails. There is a school, a library, and a
hospital. And there is no wall, cell, lock, or bar to restrain the
inmates. Nor are they subjected to a distinctive dress such
Page 258 U. S. 445
as marks offenders. [
Footnote
2] By § 934 of the Code of the District, persons sentenced by
its courts to imprisonment for not more than 6 months may
ordinarily be committed either to the workhouse or to the jail; if
sentenced for more than 6 months and not more than 1 year, the
commitment must be to the jail; if sentenced for more than 1 year,
the commitment must be to a penitentiary. The dominant purpose of
Occoquan is not punishment, but rehabilitation. The compulsory
labor is in a larger sense compulsory education. In the case of
those who are committed for nonsupport, it serves also the purpose
of compelling the performance of a parental duty imposed by the
common law. [
Footnote 3]
Confinement at hard labor in a workhouse or house of correction
for periods of less than a year was a punishment commonly imposed
in America in the colonial period at the time of the adoption of
the Constitution and since, for offenses not deemed serious -- that
is, for delinquencies, as distinguished from serious crimes. Thus,
by the Great Law of the Province of Pennsylvania of December 7,
1682, the penalty for clamorous scolding, railing or lying was
three days' imprisonment in the house of correction at hard labor;
for cursing, playing at cards or dice, and for the first offense of
drunkenness, it was five; for stage plays, bull baiting, and cock
fighting, it was at least ten, and for dueling it was three months.
The duty to establish such a house "for restraint, correction,
labour and punishment" was imposed upon every county of
Pennsylvania at the same time. [
Footnote 4] A similar
Page 258 U. S. 446
law had been enacted in Plymouth colony in 1658; [
Footnote 5] in Massachusetts colony earlier;
[
Footnote 6] and like provision
was made in other colonies. [
Footnote 7] By the Law of New York of February 9, 1788, c.
31, confinement in the house of correction at hard labor was
prescribed as the punishment for all disorderly persons, and those
"who threaten to run away and leave their wives and children to the
city or town" were classed as disorderly persons, with vagrants,
beggars, idlers, fortune tellers and common prostitutes. The period
of imprisonment, limited ordinarily to 60 days or until the next
general sessions of the peace, could be extended by the general
sessions for a further period of six months. In the counties or
cities in which there was no workhouse (bridewell) or house of
correction, the jails were to be used and considered as such.
[
Footnote 8] A single
institution often served as almshouse, insane asylum, workhouse,
house of correction and jail. [
Footnote 9] And under all of these laws, commitment to the
workhouse at hard labor was made by a judge, justice of the peace,
or magistrate, without presentment or indictment of a grand
jury.
Page 258 U. S. 447
Confinement at hard labor in workhouse or house of correction
did not imply infamy. Workhouses were not open to the reception of
felons. Besides being refuges, they were in purpose correctional
institutions in a true sense of those words. They were deemed
training schools, in which bad habits were to be eradicated and
good ones formed. The medium of instruction adopted was regular,
hard, productive work. The labor which inmates were required to
perform was not imposed as punishment or as a means of disgrace.
Nor was the confinement imposed primarily as punishment. That was
administered, rather, by the whipping "not exceeding ten stripes"
to which by some laws the newcomer was subjected on entering the
institution. [
Footnote 10]
The proceeds of the labor were deemed, in large part, payment for
maintenance. But often part of the earnings were reserved for the
inmate or were ordered to be paid for the support of his family.
[
Footnote 11] It thus
appears that the willful neglect to provide for wife and children
in destitute circumstances for which Congress sought to provide
relief in 1906 was not a new social manifestation, and that the
method employed by it was not novel. [
Footnote 12]
It is not the provision for hard labor, but the imprisonment in
a penitentiary, which now renders a crime infamous.
Page 258 U. S. 448
Commitment to a penitentiary, with or without hard labor,
connotes infamy because it is proof of the conviction of a crime of
such a nature that infamy was a prescribed consequence. Confinement
in a penitentiary is the modern substitute for the death penalty
and for the other forms of corporal punishment which, at the time
of the adoption of the Fifth Amendment, were still administered in
America for most of the crimes deemed serious. [
Footnote 13] It was then believed that even
capital punishment should be inflicted under conditions involving
public disgrace. Largely for this reason, hangings were public, as
in earlier days men had been drawn and quartered. If the life of an
offender was spared, it was then thought that some other punishment
involving disgrace must be applied to render his loss of reputation
permanent. When, in 1786, Pennsylvania, shrinking from the physical
cruelties inflicted under sentence of the courts, took the first
step in reform by substituting imprisonment for death as the
penalty for some of the lesser felonies, the exposure to infamy was
still deemed an essential of punishment. The measure then enacted
provided specifically that the imprisonment should be attended by
"continuous hard labor publicly and disgracefully imposed." Hard
labor as thus prescribed and practiced
Page 258 U. S. 449
was merely an instrument of disgrace. The statutory direction
was carried out by employing the convicts in gang labor along the
public roads, chained by fetters with bomb shells attached and iron
collars, with shaved heads, and wearing a distinctive infamous
dress. [
Footnote 14] The
demoralizing influence both upon the community and the convict of
these public manifestations of disgrace was soon realized, and led,
shortly after the adoption of our Constitution, to their
discontinuance in Pennsylvania and to the establishment in
Philadelphia of America's first penitentiary. [
Footnote 15]
Hard labor was not considered an essential element of the
penitentiary punishment, and experience proved that it was in fact
an alleviation. The most severe punishment inflicted was solitary
confinement without labor. [
Footnote 16] Hard labor regularly pursued and
productively employed had for two centuries been applied as a
corrective measure in the effort to deal with social delinquents.
[
Footnote 17] Then the
belief spread that it might be effectively employed also in the
reformation of criminals -- a class of persons theretofore
generally considered incorrigible. And when reform and
rehabilitation of those convicted of serious crimes became a chief
aim of the penal system, the dignity of labor was proclaimed, and
the practices of the workhouse
Page 258 U. S. 450
were adopted and developed in the penitentiary. [
Footnote 18] Thus, hard labor, which, in
inflicting punishment for serious crimes, had first been introduced
as a medium of disgrace, became the means of restoring and giving
self-respect.
The purpose of the Fifth Amendment was stated by Chief Justice
Shaw in
Jones v. Robbins, 8 Gray 329, 347-349, and his
statement was quoted with approval by this Court in
Ex parte
Wilson, supra, p.
114 U. S. 428.
It was
"to make a marked distinction between crimes of great magnitude
and atrocity, and to secure every person against accusation and
trial for them without the previous interposition of a grand
jury,"
but "to leave minor and petty offences to be prosecuted without
these formalities." Imprisonment in a penitentiary where the
convict is (or used to be)
"subject to solitary imprisonment, to have his hair cropped, to
be clothed in conspicuous prison dress, subjected to hard labor
without pay, to hard fare, coarse and meager food, and to severe
discipline,"
is a punishment deemed infamous; but commitment to a "house of
correction, under that and the various names of workhouse or
bridewell," although some of the incidents of the confinement are
identical, "has not the same character of infamy attached to it."
There is thus no basis for the contention that sentence to hard
labor as an incident of confinement necessarily renders a
punishment infamous, or that commitment to a workhouse at hard
labor can be made only upon indictment by a grand jury. This Court
did not hold in
Wong Wing v. United States, nor has it
heretofore ever decided or stated, that commitment to a workhouse
at hard labor is an infamous punishment. The confinement in the
Wong Wing case was in an institution used as a
Page 258 U. S. 451
state prison or penitentiary, and the expression in the opinion
concerning imprisonment at hard labor must be understood as
referring to such.
But even if imprisonment at hard labor elsewhere than in a
penitentiary had, in the past, been deemed an infamous punishment,
it would not follow that confinement, or rather service, at a
workhouse like Occoquan, under the conditions now prevailing should
be deemed so. As stated in
Ex parte Wilson, 114 U.
S. 417,
114 U. S. 427,
and in
Mackin v. United States, 117 U.
S. 348,
117 U. S. 351:
"What punishments shall be considered as infamous may be affected
by the changes of public opinion from one age to another."
Such changes may result from change in the conditions in which,
or in the purpose for which, a punishment is prescribed. The
Constitution contains no reference to hard labor. The prohibition
contained in the Fifth Amendment refers to infamous crimes -- a
term obviously inviting interpretation in harmony with conditions
and opinion prevailing from time to time. And today, commitment to
Occoquan for a short term for nonsupport of minor children is
certainly not an infamous punishment.
[
Footnote 1]
It seems clear that the court had this fact in mind. In his
concurring opinion, Mr. Justice Field said, p.
163 U. S.
241:
"It does not follow that, because the government may expel
aliens or exclude them from coming to this country, it can confine
them at hard labor in a penitentiary before deportation or subject
them to any harsh and cruel punishment."
In
Ex parte Wilson, 114 U. S. 417,
114 U. S. 428,
strongly relied upon by the Court, pp.
163 U. S. 234,
163 U. S. 237,
163 U. S. 242,
Mr. Justice Gray said:
"For more than a century, imprisonment at hard labor in the
state prison or penitentiary or other similar institution has been
considered an infamous punishment in England and America."
In the
Wilson case, the prisoner had been sentenced to
the Detroit House of Correction for the term of 15 years for having
passed counterfeit bonds. In 1892, when Wong Wing was sentenced,
there were about 1,700 United States prisoners, other than those
serving jail sentences, who were confined in about 60 state and
territorial institutions. The institution having the largest
number, 432 on July 1, 1892, was the Detroit House of Correction,
these prisoners having been received from various districts in the
South and West, as well as from the Michigan districts. Reports of
Attorney General: For 1891, p. xi; for 1892, pp. x, 270, 272.
See Compiled Laws Mich. 1897, §§ 2165, 2176, 2179-2181,
11985.
[
Footnote 2]
Reports of Superintendent of the Workhouse, in Annual Reports of
the Commissioners of the District of Columbia, 1911 to 1921,
inclusive.
[
Footnote 3]
See Dunbar v. Dunbar, 190 U. S. 340,
190 U. S.
351-352; William H. Baldwin, Family Desertion and
Non-Support Laws (Washington, D.C.1904) p. 5.
[
Footnote 4]
Charter and Laws of the Province of Pennsylvania, 1682-1700,
edition of 1879, pp. 107-123, 192-208 (reenactment of 1693).
[
Footnote 5]
Plymouth Colony Laws (Boston, 1836) p. 120.
[
Footnote 6]
The Colonial Laws of Massachusetts (Boston, 1887) pp. 66 and
127.
[
Footnote 7]
Acts and Laws of His Majesty's English Colony of Connecticut in
New England in America (New London, 1750), pp. 204-207; Acts and
Laws of the Connecticut in America (Hartford, 1786), pp. 206-210;
Laws of the Colony of Delaware, 1753, c. 146; Laws of the Colony of
Maryland, 1766, c. 29, § 15; Laws of the Maryland, 1811, c. 96.
[
Footnote 8]
Jails were used mainly as places for detaining prisoners
awaiting trial and for confining poor debtors. Committal to a jail
as punishment was comparatively rare, except for religious or
political offenses, in many of the colonies. H. E. Barnes, The
Historical Origin of the Prison System in America, 12 Journal of
Criminal Law and Criminology, 35, 36.
[
Footnote 9]
See Statutes of Connecticut and Maryland cited in
note 5 Barnes, History of Penal
Institutions of New Jersey, pp. 48-51.
[
Footnote 10]
See Colonial Laws of Massachusetts (Boston, 1887) p.
127.
[
Footnote 11]
By the Connecticut laws, which applied to a range of social
delinquents as comprehensive as those of Pennsylvania and New York,
it was provided that, if the persons committed were
"heads of families, then, and in such case, the whole profit and
benefit of their labours, or so much thereof as the county court of
that county where such persons are committed shall think necessary,
and direct; shall be for the relief, and support of their
families."
Acts and Laws of His Majesty's English Colony of Connecticut in
New England in America (New London, 1750) p. 206.
[
Footnote 12]
Nor was it then unusual.
See William H. Baldwin, Family
Desertion and Non-Support Laws (Washington, D.C.1904).
[
Footnote 13]
H. E. Barnes, The Historical Origin of the Prison System in
America, 12 Journal of Criminal Law and Criminology, 35. The then
statutes of New York, for instance, recited sixteen capital crimes:
treason, murder, rape, buggery, burglary, robbery of a church,
breaking and entry, robbery of person, robbery and intimidation in
dwelling houses, arson, malicious maiming, forgery, counterfeiting,
theft of a chose in action, second offense for other felonies, and
abetting any of the above crimes. The punishment, other than death,
then prescribed for serious crimes were mutilation, cutting off the
ears or nailing them to the pillory, branding, whipping, the
pillory, the stocks and the ducking stool.Laws of the Colony of New
York, 1788, c. 37, § 1; Greenleaf Edition, 1792, vol. 2, pp. 78,
79; Philip Klein, Prison Methods in New York, pp. 19-35.
[
Footnote 14]
Act of September 15, 1786, 12 Statutes at Large of Pennsylvania,
p. 280, c. 1212; Robert Vaux, Notices of the Original and
Successive Efforts to Improve the Discipline of the Prison at
Philadelphia, etc. (1826) pp. 8, 21, 22; William Crawford, Report
on the Penitentiaries of the United States (London, 1835) pp. 8,
9.
[
Footnote 15]
See Report of William Crawford on the penitentiaries of
the United States (London, 1835) p. 27.
[
Footnote 16]
George Ives, A History of Penal Methods, p. 174.
[
Footnote 17]
The law of Connecticut (
see note 5 supra) was entitled
"An act for restraining, correcting, suppressing, and punishing
rogues, vagabonds, common beggars, and other lewd, idle, dissolute,
profane and disorderly persons, and for setting them to work."
[
Footnote 18]
H. E. Barnes, Historical Origin of Penal Institutions, 12
Journal of Criminal Law and Criminology, 35, 37; F. H. Wines,
Punishment and Reformation (1919 ed.) c. 6; Philip Klein, Prison
Methods in New York, c. 8.