United States v. Moreland/Dissent Brandeis
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 8 and 13. He was tried by a jury and found guilty. The court suspended sentence and ordered him to pay each month for their 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 50 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 (51 App. D. C. 118, 276 Fed. 640), relying upon Wong Wing v. United States, 163 U.S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140, 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, 42 Sup. Ct. 169, 66 L. Ed. --.
'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, 426, 5 Sup. Ct. 935, 29 L. Ed. 89. 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.  Imprisonment in a state penitentiary is an infamous punishment whether it be with or without hard labor. In re Claasen, 140 U.S. 200, 205, 11 Sup. Ct. 735, 35 L. Ed. 409. 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 12 months, or by both such fine and imprisonment. If a fine is imposed, the court may direct that it be paid 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 50 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 pensalty which may be imposed for the offense charged is a fine of more than $50 or imprisonment for more than 30 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 as marks offenders.  By section 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. 
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 3 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 5; for stage plays, bull baiting, and cock fighting, it was at least 10; and for dueling it was 3 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.  A similar law had been enacted in Plymouth colony in 1658;  in Massachusetts colony earlier;  and like provision was made in other colonies.  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 6 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.  A single institution often served as almshouse, insane asylum, workhouse, house of correction and jail.  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.
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.  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.  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. 
It is not the provision for hard labor, but the imprisonment in a penitentiary, which now renders a crime in famous. 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. Con finement 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.  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 prac ticed 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.  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. 
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.  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.  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 were adopted and developed in the penitentiary.  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 (Mass.) 329, 347-349; and his statement was quoted with approval by this court in Ex parte Wilson, supra, 114 U.S. 428, 5 Sup. Ct. 941, 29 L. Ed. 89. 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 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, 427, 5 Sup. Ct. 935 (29 L. Ed. 89), and in Mackin v. United States, 117 U.S. 348, 351, 6 Sup. Ct. 777, 778 (29 L. Ed. 909):
'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 to-day commitment to Occoquan for a short term for nonsupport of minor children is certainly not an infamous punishment.
^2 It seems clear that the court had this fact in mind. In his concurring opinion Mr. Justice Field said (163 U.S. 241, 16 Sup. Ct. 982, 41 L. Ed. 140): '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 oruel punishment.' In Ex parte Wilson, 114 U.S. 417, 428, 5 Sup. Ct. 935, 940 (29 L. Ed. 89) strongly relied upon by the court in 163 U.S. 234, 237, 242, 16 Sup. Ct. 977, 41 L. Ed. 140, 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 Michingan 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.
^3 Reports of Superintendent of the Workhouse, in Annual Reports of the Commissioners of the District of Columbia, 1911 to 1921, inclusive.
^5 Charter and Laws of the Province of Pennsylvania, 1682-1700, edition of 1879, pp. 107-123, 192-208 (re-enactment of 1693).
^6 Plymouth Colony Laws (Boston, 1836) p. 120.
^7 The Colonial Laws of Massachusetts (Boston, 1887) pp. 66 and 127.
^8 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 State of 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 State of Maryland, 1811, c. 96.
^9 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.
^10 See Statutes of Connecticut and Maryland cited in note 6. Barnes, History of Penal Institutions of New Jersey, pp. 48-51.
^11 See Colonial Laws of Massachusetts (Boston, 1887) p. 127.
^12 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.
^13 Nor was it then unusual. See William H. Baldwin, Family Desertion and Non-Support Laws (Washington, D. C. 1904).
^14 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.
^15 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.
^16 See Report of William Crawford on the penitentiaries of the United States (London, 1835) p. 27.
^17 George Ives, A History of Penal Methods, p. 174.
^18 The law of Connecticut (see note 6, 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.'
^19 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.