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ROSENBERG v. CARROLL

June 22, 1951

ROSENBERG
v.
CARROLL et al.



The opinion of the court was delivered by: GODDARD

This is a proceeding, initiated by a writ of habeas corpus, in which the relator seeks a retransfer from the death cell block at Sing Sing Prison to the Women's House of Detention in New York City.

Relator was convicted of espionage in violation of Title 50 U.S.C. § 34 (1948 Revised Criminal Code, 18 U.S.C. 794), and sentenced in the United States District Court for the Southern District of New York on April 5, 1951, to be executed until dead. The judgment of the court ordered that the relator be committed to the custody of the Attorney General or his authorized representative for appropriate detention pending execution of the death penalty. On April 11, 1951, relator was transferred by order of the Bureau of Prisons from the Women's House of Detention in New York City, where she had been detained during her trial, to the death cell block for female prisoners at Sing Sing Prison, Ossining, New York.

 Relator's petition alleges two grounds for the relief sought. She asserts (1) that she was transferred unlawfully to the death cell block at Sing Sing in that she was transferred there for the purpose of 'breaking' her into confessing the crime for which she was convicted and (2) that her incarceration there is cruel and inhuman punishment in violation of the Eighth Amendment of the Constitution of the United States.

 The government denies these allegations and contends that the relief sought cannot be obtained by way of writ of habeas corpus- that the only function of the relator's detention. It is not necessary to decide this point for, even assuming that the procedure here adopted is the proper one, the relator is not entitled to the relief she seeks.

 Title 18 United States Code, § 4082, provides:

 'Persons convicted of an offense against the United States shall be committed * * * to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences shall be served.

 'The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise, * * *.

 'The Attorney General may order any inmate transferred from one institution to another. * * *'

 The Attorney General may transfer a convict from a federal to a state prison without notice to or consent of the convict. Title 18 United States Code, § 4002; Chapman v. Scott, D.C., 10 F.2d 156, affirmed 2 Cir., 10 F.2d 690, certiorari denied 270 U.S. 657, 46 S. Ct. 354, 70 L. Ed. 784; Ex Parte Karstendick, 93 U.S. 396, 23 L. Ed. 889; Bowen v. United States, 10 Cir., 174 F.2d 323. The Attorney General therefore had authority to transfer the relator to Sing Sing Prison.

 No evidence was presented to support relator's allegations in her petition that she was transferred there in an effort to 'break' her or that the Attorney General exercised his discretion for an ulterior purpose or in any but a lawful manner.

 Indeed, the initiative for her transfer did not come from the Attorney General or any of his subordinates. The contract between the United States and the City of New York under which federal female prisoners are detained in the Women's House of Detention, a New York City Institution, does not provide for detention of prisoners sentenced to death. The Commissioner of the Department of Correction, City of New York, requested that the federal authorities transfer her because of the crowded condition of the House of Detention and because of the lack of proper facilities there for the detention of a prisoner awaiting the execution of a death sentence.

 The relator's second ground for relief is also without merit.

 The Eighth Amendment was adopted to prevent inhuman, barbarous, or torturous punishment or some punishment unknown at common law. Hemans v. United States, 6 Cir., 163 F.2d 228; In re Pinaire, 46 F.Supp. 113.

 Section 3566 of Title 18 United States Code, provides: 'The manner of inflicting the punishment of death shall be that prescribed by the laws of the place within which the sentence is imposed. The United States marshal charged with the ...


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