The opinion of the court was delivered by: IRVING
Having virtually exhausted every avenue of judicial review of their convictions, Julius and Ethel Rosenberg now move for a reduction of the sentences of death which this Court imposed on April 5, 1951,
subsequent to the conviction of the Rosenbergs, after trial by jury of the crime of having conspired between 1944 and 1950 to violate Title 18, United States Code, Section 794, by combining among themselves and with others to communicate to the Union of Soviet Socialist Republics documents, writings, etc., relating to the national defense of the United States, with intent and reason to believe that the matter transmitted would be used to the advantage of the Soviet Union. The government opposes the motion.
The conviction has been examined and affirmed by the Court of Appeals, 2 Cir., Feb. 25, 1952, 195 F.2d 583, rehearing denied April 8, 1952, 195 F.2d 609.
The Supreme Court declined to review the case, Oct. 13, 1952, 344 U.S. 838, 73 S. Ct. 20. The defendants then applied to the Supreme Court of the United States for rehearing on their application for certiorari which was also denied. Nov. 17, 1952, 344 U.S. 889, 73 S. Ct. 134.
Thereafter the defendants made an application to the District Court to set aside the judgement pursuant to Title 28, United States Code, Section 2255. I asked to be relieved of the necessity of hearing that application. Accordingly, the application was heard by the Honorable Sylvester J. Ryan of this Court and was denied on December 10, 1952, 108 F.Supp. 798. An appeal was taken from that decision to the United States Court of Appeals which unanimously affirmed, 2 Cir., Dec. 31, 1952, 200 F.2d 666.
In response to this application, I have not only heard counsel at great length and studied the defendants' petition but have also re-studied the voluminous record of the trial and refreshed my recollection of the demeanor of the witnesses. Re-examining the question de novo, I am again compelled to conclude that the defendants' guilt- as found by the unanimous verdict of the jury- was established beyond doubt. None of the so- called later discoveries or revelations which counsel contend create doubt of guilt touch the basic matters disclosed by the testimony of Ruth and David Greenglass, Max Elitcher, Ben Schneider, and the other government witnesses, which the jury chose to believe and which points unmistakeably to the full and conscious participation of the defendants in this conspiracy. On this application baseless charges of perjury have been hurled at several government witnesses. The jury has already decided this question in the contrary, so did my colleague Judge Ryan, so did the United States Court of of Appeals. I am also convinced that these witnesses told the truth. Therefore we observe several judicial determinations attesting to the credence of the challenged government witnesses.
The issue which now confronts this Court therefore is whether, assuming the guilt of the defendants, and the overwhelming character of the evidence renders such assumption inescapable, there nevertheless exist other considerations which would warrant reduction of the sentence.
The statute under which the Court imposed sentence provides for a maximum prison sentence of 30 years,
The Court was not empowered to impose a life sentence even if it had entertained such thought.
At the time of the original sentence I had the benefit of days of deliberation and study of the record in addition to a vivid recollection of the conduct of the witnesses. Since the time of the sentences I have had approximately 21 months to reconsider, to re-examine the record, to meditate and search my conscience. It would be, indeed, simple and less trying upon this Court were I to dispose of the Rosenbergs' application by reducing the sentences. I stated at the time of the original sentences (p. 2454),
'* * * it is only human to be merciful and it is natural to try to spare lives.'
The Court, however, has had a solemn trust placed in its hands by the people of this land and I am convinced that any change of these sentences by this Court, in the light of the evidence adduced in this case, would be a violation of that trust. Devotion to duty and justice must prevail over action which could be attributable only to the emotions.
We are dealing with the type of offense which is a crime of the mind and the heart. While the law under which the defendants Rosenberg were convicted does not recognize degrees of their offense, the court may, upon sentencing, take this factor into consideration. Their traitorous acts were of the highest degree. They turned over information to Russia concerning the most deadly weapon known to man thereby exposing millions of their countrymen to danger or death.
The Rosenbergs were not minor espionage agents; they were on the top rung of this conspiracy. Julius had direct contact with the representative of the foreign government, to wit, Yakolev, a Russian Vice-Consul in New York City. he had contacts with other representatives of the U.S.S.R. He disbursed large amounts of Russian espionage funds- for example the $ 5,000 given to Greenglass to flee the jurisdiction. He was always the principal recruiter for scientists and technicians and the guiding spirit of the conspirators. And at all times Ethel Rosenberg, older in years, and wise in Communist doctrine, aided and abetted and advised her husband.
Throughout history the crimes of traitors stand as those most abhorred by people. At the time of the imposition of the sentences in this case I pointed out that the crime for which these defendants stood convicted was worse than murder. The distinction is based upon reason. The murderer kills only his victim while the traitor violates all the members of his society, all the members of the group to which he owes his allegiance. Our forebears attached extreme odium to the crime of betraying one's country. (Pound, Criminal Justice in America 103 (1945); 4 Blackstone Commentaries, 93). The fact that the acts of the defendants were not characterized as treason, or that the indictment in this case was not one for treason, does not reduce the enormity of the offense, for the United States Supreme Court pointed out in Cramer v. U.S., 1944, 325 U.S. 1, 45, 65 S. Ct. 918, 939, 89 L. Ed.1441:
'* * * the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security. In debating this provision, Rufus King observed to the Convention that the 'controversy relating to Treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than Treason.' (2 Farrand 347).'
In the many letters urging judicial clemency, which have been submitted to this Court, the overwhelming preponderance of which are in response to a self=serving solicitation by counsel for the Rosenbergs, it has frequently been urged that the sentences were unprecedented, being the first such sentences imposed for peacetime espionage. I hasten to correct this misapprehension and emphasize, therefore, that the sentences were not imposed for peacetime espionage but for wartime espionage. This court would not have the power to impose these sentences for peacetime espionage.
The letters referred to, for the greater part indicate that the writers have never read the record, and unfamiliar with the facts in the case, or have been misinformed concerning them. Some of these writers do not hesitate to pass judgment on the credibility of witnesses even though they have not observed them on the witness stand, a basic essential to judging credibility. They nevertheless assume the role of a super-jury, sitting in absentia.
While it is true that these sentences are in some respects unprecedented, we are all cognizant of the fact that we are not living in a static world; times change and conditions change. Indeed, it has been recognized that punishment for traitorous acts was little used in the past because of our position of great internal and external security. The following passage is found in Hurst, Treason in the United States, 58 Harv.Law Review, 226, 806 (1945).
'As the Supreme Court observed in the Cramer case (65 Sup.Ct.at 931) 'we have managed to do without the treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability.' (Cf. 2 ...