1. A material witness who is incarcerated because unable to give
bail is entitled under 28 U.S.C. § 1821 to the same $20
per diem compensation as is allowed a nonincarcerated
witness during the trial or other proceeding at which he is in
"attendance,"
i.e., has been summoned and is available to
testify in a court in session, regardless of whether he is
physically present in the courtroom. Pp.
410 U. S.
582-587.
2. The $1 statutory
per diem plus subsistence in kind
for incarcerated witnesses before trial does not violate the Just
Compensation Clause, as detention of a material witness is not a
"taking" under the Fifth Amendment; and the distinction between
compensation for pretrial detention and for trial attendance is not
so unreasonable as to violate the Due Process Clause of the Fifth
Amendment, since Congress could determine that, in view of the
length of pretrial confinement and the costs necessarily borne by
the Government, only minimal compensation for pretrial detention is
justified, particularly since the witness has a public duty to
testify. Pp.
410 U. S.
588-591.
452 F.2d 951, vacated and remanded to District Court.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. BRENNAN, J., filed an opinion concurring in part and
dissenting in part,
post, p.
410 U. S. 591.
DOUGLAS, J., filed a dissenting opinion,
post, p.
410 U. S.
600.
Page 410 U. S. 579
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioners, citizens of Mexico, entered the United States
illegally. To assure their presence as material witnesses at the
federal criminal trials of those accused of illegally bringing them
into this country, they were required to post bond pursuant to
former Rule 46(b) of the Federal Rules of criminal Procedure.
Unable to make bail, they were incarcerated. [
Footnote 1]
The petitioners instituted the present class action in the
United States District Court for the Western District of Texas on
behalf of themselves and others similarly incarcerated as material
witnesses. Their complaint alleged that they and the other members
of their class, had been paid only $1 for every day of their
confinement; that the statute providing the compensation to be paid
witnesses requires payment of a total of $21 per day to material
witnesses in custody; and that, alternatively, if the statute be
construed to require payment of only $1 per day to detained
witnesses, it violates the Fifth Amendment guarantees of just
compensation and due process. They did not attack the validity or
length of their incarceration as such, but sought monetary damages
under the Tucker Act, 28 U.S.C. § 1346(a)(2), for the
Page 410 U. S. 580
lost compensation claimed, and equivalent declaratory and
injunctive relief.
The statute in question, 28 U.S.C. § 1821, provides that
a
"witness attending in any court of the United States . . . shall
receive $20 for each day's attendance and for the time necessarily
occupied in going to and returning from the same. . . ."
A separate paragraph of the statute entitles "a witness . . .
detained in prison for want of security for his appearance, . . .
in addition to his subsistence, to a compensation of $1 per day."
[
Footnote 2]
Page 410 U. S. 581
The petitioners' complaint was grounded upon the theory that
they were "attending in . . . court" throughout the period of their
incarceration, since they were prevented from engaging in their
normal occupations in order to be ready to testify. They argued
that the $20 fee is compensation for the inconvenience and private
loss suffered when a witness comes to testify, and that all of
these burdens are borne by the incarcerated witness throughout his
confinement. Urging that the compensation provisions should be
applied as broadly as the problem they were designed to ameliorate,
the petitioners argued that they were entitled to the $20
compensation for every day of confinement, in addition to the $1 a
day that they viewed as a token payment for small necessities while
in jail.
While they pressed this broad definition of "attendance," the
petitioners also pointed to a narrower and more acute problem in
administering the statute. Their amended complaint alleged that
nonincarcerated witnesses are paid $20 for each day after they have
been summoned to testify -- even for those days they are not needed
in court and simply wait in the relative comfort of their hotel
rooms to be called. By contrast, witnesses in jail are paid only $1
a day when they are waiting to testify -- even when the trial for
which they have been detained is in progress. In short, the amended
complaint alleged that the Government has construed the statute to
mean that incarcerated witnesses must be physically present in the
courtroom before they are eligible for the $20 daily compensation,
but that nonincarcerated witnesses need not be similarly present to
receive that amount. [
Footnote
3]
Page 410 U. S. 582
In its answer, the Government conceded that each witness
detained in custody is paid only $1 for every day of incarceration,
and that the witness fee of $20 is paid only when such a witness is
actually in attendance in court. The Government defended this
practice as required by the literal words of the statute, and
argued that the statute, as so construed, is constitutional.
In an unreported order, the District Court granted the
Government's motion for summary judgment, and the Court of Appeals
for the Fifth Circuit affirmed. 452 F.2d 951. The Court of Appeals
concluded that the $20 witness fee is properly payable only to
those witnesses who are "in attendance" or traveling to and from
court, and not to those who are incarcerated to assure their
attendance. So interpreted, the court upheld the statute as
constitutional. We granted certiorari, 409 U.S. 841, to consider a
question of seeming importance in the administration of justice in
the federal courts.
I
Both the petitioners and the Government adhere to their own
quite contrary interpretations of § 1821 -- the petitioners
maintaining that they are entitled to a $20 witness fee for every
day of incarceration and the Government seeking to limit such
payment to those days on which a detained witness is physically "in
attendance" in court. We find both interpretations of the statute
incorrect -- the petitioners' too expansive, the Government's too
restricted. [
Footnote 4]
Page 410 U. S. 583
The statute provides to a "witness attending in any court of the
United States" $20 "for each day's attendance." This perforce means
that a witness can be eligible for the $20 fee only when two
requirements are satisfied -- when there is a court in session that
he is to attend and when he is in necessary attendance on that
court.
The petitioners' interpretation of "attendance" as beginning
with the first day of incarceration slights the statutory
requirement that attendance be in court. A witness might be
detained many days before the case in which he is to testify is
called for trial. During that time, there is literally no court in
session in which he could conceivably be considered to be in
attendance. Over a century and a half ago, Attorney General William
Wirt rejected a similar construction of an almost identically
worded law. He found that the then-current statute, which provided
compensation to a witness "for each day he shall attend in court,"
[
Footnote 5] could not be
construed
Page 410 U. S. 584
to provide payment to incarcerated witnesses for every day of
their detention:
"There is no court, except it be a court in session. There are
judges; but they do not constitute a court, except when they
assemble to administer the law. . . . Now I cannot conceive with
what propriety a witness can be said to be
attending in
court when there is
no court, and will be
no
court for several months."
"To consider a witness who has been committed to jail because he
cannot give security to attend a future court, to be actually
attending the court from the time of his commitment, and
this for five months before there is any court in existence, would
seem to me to be rather a forced and unnatural construction."
1 Op.Atty.Gen. 424, 427.
The Government, on the other hand, would place a restrictive
gloss on the statute's requirement of necessary attendance; it
maintains that the $20 compensation need be paid only for the days
a witness is in actual physical attendance in court, and it
concludes that a witness confined during the trial need only be
paid for those days on which he is actually brought into the
courtroom. But § 1821 does not speak in terms of "physical" or
"actual" attendance, and we decline to engraft such a restriction
upon the statute. Rather, the statute reaches those witnesses who
have been summoned and are in necessary attendance on the court, in
readiness to testify. There is nothing magic about the four walls
of a courtroom.
Page 410 U. S. 585
Once a witness has been summoned to testify, whether he waits in
a witness room, a prosecutor's office, a hotel room, or the jail,
he is still available to testify, and it is that availability that
the statute compensates. Nonincarcerated witnesses are compensated
under the statute for days on which they have made themselves
available to testify, but on which their physical presence in the
courtroom is not required -- for example, where the trial is
adjourned or where their testimony is only needed on a later day.
[
Footnote 6] We cannot accept
the anomalous conclusion that the same statutory language imposes a
requirement of physical presence in the courtroom on witnesses who
have been confined. Attorney General Wirt concluded that language
similar to that at issue here did not require any such physical
presence:
"But it was by no means my intention to authorize the inference
. . . that, in order to entitle a witness to his
per diem
allowance under the act of Congress, it was necessary that he
should be every day
corporeally present within the walls
of the courtroom, and that the court must be every day in actual
session. Such a puerility never entered my mind. My opinion simply
was, and is, that, before compensation could begin to run, the
court must have commenced its session; the session must be legally
subsisting, and the witness attending on the court -- not
necessarily in the courtroom, but within its power, whenever it may
require his attendance. . . . I consider
Page 410 U. S. 586
a witness as attending on court to the purpose of earning his
compensation, so long as he is in the power of the court whensoever
it may become necessary to call for his evidence, although he may
not have entered the court-room until such call shall have been
made; and I consider the court in session from the moment of its
commencement until its adjournment
since die,
notwithstanding its intermediate adjournments
de die in
diem."
1 Op.Atty.Gen., at 426-427.
We conclude that a material witness who has been incarcerated is
entitled to the $20 compensation for every day of confinement
during the trial or other proceeding for which he has been
detained. [
Footnote 7] On each
of those days,
Page 410 U. S. 587
the two requirements of the statute are satisfied -- there is a
court in session and the witness is in necessary attendance. He is
in the same position as a nonincarcerated witness who is summoned
to appear on the first day of trial, but on arrival is told by the
prosecutor that he is to hold himself ready to testify on a later
day in the trial. The Government pays such a witness for every day
he is in attendance on the court, and the statute requires it to
pay the same
per diem compensation to the incarcerated
witness. Because the Court of Appeals upheld a construction of the
statute that would allow the $20 to be paid to incarcerated
witnesses only for those days they actually appear in the
courtroom, its judgment must be set aside. [
Footnote 8]
Page 410 U. S. 588
II
The petitioners argue that, if § 1821 provides incarcerated
witnesses only a dollar a day for the period before the trial
begins, then the statute is unconstitutional. We cannot agree.
As noted at the outset, the petitioners do not attack the
constitutionality of incarcerating material witnesses, or the
length of such incarceration in any particular case. [
Footnote 9] Rather, they say that, when the
Government incarcerates material witnesses, it has "taken" their
property, and that one dollar a day is not just compensation for
this "taking" under the Fifth Amendment. Alternatively, they argue
that payment of only one dollar a day before trial, when contrasted
with the $20 a day paid to witnesses attending a trial, is a denial
of due process of law.
But the Fifth Amendment does not require that the Government pay
for the performance of a public duty it is already owed.
See
Monongahela Bridge Co. v. United States, 216 U.
S. 177,
216 U. S. 193
(modification of bridge
Page 410 U. S. 589
obstructing river);
United States v. Hobbs, 450 F.2d
935 (Selective Service Act);
United States v. Dillon, 346
F.2d 633, 635 (representation of indigents by court-appointed
attorney);
Roodenko v. United States, 147 F.2d 752, 754
(alternative service for conscientious objectors);
cf. Kunhardt
Co. v. United States, 266 U. S. 537,
266 U. S. 540.
It is beyond dispute that there is in fact, a public obligation to
provide evidence,
see United States v. Bryan, 339 U.
S. 323,
339 U. S. 331;
Blackmer v. United States, 284 U.
S. 421,
284 U. S. 438,
and that this obligation persists no matter how financially
burdensome it may be. [
Footnote
10] The financial losses suffered during pretrial detention are
an extension of the burdens borne by every witness who testifies.
The detention of a material witness, in short, is simply not a
"taking" under the Fifth Amendment, and the level of his
compensation, therefore, does not, as such, present a
constitutional question.
"[I]t is clearly recognized that the giving of testimony and the
attendance upon court or grand jury in order to testify are public
duties which every person within the jurisdiction of the Government
is bound to perform upon being properly summoned, and for
performance of which he is entitled to no further compensation than
that which the statutes provide. The personal sacrifice involved is
a part of the necessary contribution of the individual to the
welfare of the public."
Blair v. United States, 250 U.
S. 273,
250 U. S. 281.
[
Footnote 11]
Page 410 U. S. 590
Similarly, we are unpersuaded that the classifications drawn by
§ 1821 as we have construed it are so irrational as to violate
the Due Process Clause of the Fifth Amendment.
Cf. Bolling v.
Sharpe, 347 U. S. 497,
347 U. S. 499.
The statute provides $20
per diem compensation to a
witness who is in necessary attendance on a court, but that fee is
payable to any witness, incarcerated or not. During the period that
elapses before his attendance on a court, a witness who is not
incarcerated gets no compensation whatever from the Government. An
incarcerated witness, on the other hand, gets one dollar a day
during that period, in addition to subsistence in kind.
We cannot say that there is no reasonable basis for
distinguishing the compensation paid for pretrial detention from
the fees paid for attendance at trial. Pretrial confinement will
frequently be longer than the period of attendance on the court,
and, throughout that period of confinement, the Government must
bear the cost of food, lodging, and security for detained
witnesses. Congress could thus reasonably determine that, while
some compensation should be provided during the pretrial detention
period, a minimal amount was justified, particularly in view of the
fact that the witness has a public obligation to testify. As the
Court of Appeals correctly observed,
[G]overnmental recognition of its interest in having persons
appear in court by paying them for that participation in judicial
proceedings does not require that it make payment of the same
nature and extent to persons who are held available for
participation in judicial proceedings should it prove to be
necessary. That the government pays for one stage does not require
that it pay in like manner for all stages.
452 F.2d at 955.
Page 410 U. S. 591
We do not pass upon the wisdom or ultimate fairness of the
compensation Congress has provided for the pretrial detention of
material witnesses. We do not decide "that a more just and humane
system could not be devised."
Dandridge v. Williams,
397 U. S. 471,
397 U. S. 487.
Indeed, even though it opposed granting the petition for certiorari
in the present case, the Government found it "obvious" that "the
situation is not a satisfactory one," and we were informed at oral
argument that a legislative proposal to increase the
per
diem payment to detained witnesses will shortly be submitted
by the Department of Justice to the Office of Management and Budget
for review. But no matter how unwise or unsatisfactory the present
rates might be, the Constitution provides no license to impose the
levels of compensation we might think fair and just. That task
belongs to Congress, not to us.
The judgment of the Court of Appeals is vacated, and the case is
remanded to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
[
Footnote 1]
Fed.Rule Crim.Proc. 46(b), at the time this case arose, and
before Rule 46 was amended to conform to the Bail Reform Act of
1966, provided:
"Bail for Witness."
"If it appears by affidavit that the testimony of a person is
material in any criminal proceeding and if it is shown that it may
become impracticable to secure his presence by subpoena, the court
or commissioner may require him to give bail for his appearance as
a witness, in an amount fixed by the court or commissioner. If the
person fails to give bail, the court or commissioner may commit him
to the custody of the marshal pending final disposition of the
proceeding in which the testimony is needed, may order his release
if he has been detained for an unreasonable length of time and may
modify at any time the requirement as to bail."
[
Footnote 2]
The statute provides in full:
"§ 1821. Per diem and mileage generally; subsistence."
"A witness attending in any court of the United States, or
before a United States commissioner, or before any person
authorized to take his deposition pursuant to any rule or order of
a court of the United States, shall receive $20 for each day's
attendance and for the time necessarily occupied in going to and
returning from the same, and 10 cents per mile for going from and
returning to his place of residence. Regardless of the mode of
travel employed by the witness, computation of mileage under this
section shall be made on the basis of a uniform table of distances
adopted by the Attorney General. Witnesses who are not salaried
employees of the Government and who are not in custody and who
attend at points so far removed from their respective residence as
to prohibit return thereto from day to day shall be entitled to an
additional allowance of $16 per day for expenses of subsistence
including the time necessarily occupied in going to and returning
from the place of attendance:
Provided, That in lieu of
the mileage allowance provided for herein, witnesses who are
required to travel between the Territories and possessions, or to
and from the continental United States, shall be entitled to the
actual expenses of travel at the lowest first-class rate available
at the time of reservation for passage, by means of transportation
employed:
Provided further, That this section shall not
apply to Alaska."
"When a witness is detained in prison for want of security for
his appearance, he shall be entitled, in addition to his
subsistence, to a compensation of $1 per day."
"Witnesses in the district courts for the districts of Canal
Zone, Guam, and the Virgin Islands shall receive the same fees and
allowances provided in this section for witnesses in other district
courts of the United States."
[
Footnote 3]
By way of illustration, the witness who sets out on Monday in
order to be available to testify on Tuesday, but who is not
actually called to the court for testimony until Friday, and who
returns home on Saturday, will receive $20 for every day from
Monday through Saturday. But the material witness who is
incarcerated on Monday, held until Friday when he testifies, and
then released will receive one dollar for every day and an
additional $20 only for Friday -- the day he actually
testifies.
[
Footnote 4]
Both parties bolster their statutory interpretations with
arguments based upon the statutory language. The petitioners point
out that incarcerated witnesses are not specifically excluded from
those entitled to receive the $20 fee for attending court, though
they are excluded from those entitled to the $16-a-day subsistence
allowance. Hence, they conclude that Congress intended that they be
eligible for the $20-per-day fee. But that argument proves no more
than that Congress intended a detained witness to be eligible for
the $20 fee for every day he is "attending" court; it does not
indicate that Congress intended that every day of incarceration is
the equivalent of a day attending court and compensable at the rate
of $20 per day.
The Government supports its position by pointing out that the
statute allocates to a detained witness $1 per day "in addition to
his subsistence," not $1 a day in addition both to subsistence and
to a witness fee of $20. But it is difficult to give any weight to
this argument, since the Government acknowledges that a detained
witness is to be paid $20 a day at least for days of physical
attendance in court. Therefore, according to the Government's own
interpretation, the $1-a-day clause can hardly be exclusive.
[
Footnote 5]
"
And be it further enacted, That the compensation to
jurors and witnesses, in the courts of the United States, shall be
as follows, to-wit: to each grand and other juror, for each day he
shall attend in court, one dollar and twenty-five cents; and for
traveling, at the rate of five cents per mile, from their
respective places of abode, to the place where the court is holden,
and the like allowance for returning; to the witnesses summoned in
any court of the United States, the same allowance as is above
provided for jurors."
Act of Feb. 28, 1799, c.19, § 6, 1 Stat. 626.
[
Footnote 6]
Cf., e.g., Hunter v. Russell, 59 F. 964, 967-968;
Whipple v. Cumberland Cotton Mfg. Co., 29 F. Cas. 933 (No.
17,515);
Hance v. McCormick, 11 F. Cas. 401 (No.
6,009).
The Department of Justice regulations repeat the statutory
directive that a witness is to be paid $20 for "each day's
attendance." Department of Justice, United States Marshal's Manual
340.14 (1971). There is no explicit requirement of physical
presence in the courtroom.
[
Footnote 7]
The legislative history of the compensation provision is
unenlightening. Though Congress early provided compensation for
witnesses attending in the courts of the United States, no specific
provision was made for incarcerated witnesses.
See, e.g.,
Act of May 8, 1792, c. 36, § 3, 1 Stat. 277; Act of June 1,
1796, c. 48, § 2, 1 Stat. 492; Act of Feb. 28, 1799, c.19,
§ 6, 1 Stat. 626. In 1853, Congress provided for payment to a
witness of $1.50 a day while attending court, and specifically
indicated that a detained witness was to be paid $1 a day over and
above his subsistence. Act of Feb. 26, 1853, c. 80, § 3, 10
Stat. 167. In 1926, Congress eliminated the specific provision for
compensation to detained witnesses and raised the
per diem
compensation for attendance in court. Act of Apr. 26, 1926, c. 183,
§§ 1-3, 44 Stat. 323-324.
In the following two decades, Congress changed the level of
compensation, but did not specifically provide for compensation to
detained witnesses.
See Act of June 30, 1932, c. 314,
§ 323, 47 Stat. 413; Act of Mar. 22, 1935, c. 39, § 3, 49
Stat. 105; Act of Dec. 24, 1942, c. 825, § 1, 56 Stat. 1088.
When the Judicial Code was revised in 1948, the provision for
per diem compensation to detained witnesses was again
absent, Act of June 25, 1948, c. 646, § 1821, 62 Stat. 950,
but was added the following year, Act of May 24, 1949, c. 139,
§ 94, 63 Stat. 103, with the explanation by the House
Committee on the Judiciary that it had been "inadvertently
omitted." H.R.Rep. No. 352, 81st Cong., 1st Sess., 16. By a
separate measure, witness fees were increased. Act of May 10, 1949,
c. 96, 63 Stat. 65. While the
per diem fee, the
subsistence fee, and the travel allowance have all been increased,
the $1 a day for incarcerated witnesses has remained constant.
See Act of Aug. l, 1956, c. 826, 70 Stat. 798; Act of Mar.
27, 1968, Pub.L. 90-274, § 102(b), 82 Stat. 62.
The petitioners urge that this history of steadily increasing
fees at least indicates a congressional intent to compensate
witnesses fully for their lost time and income, and that, since
they suffer these losses throughout the period of incarceration,
they ought to receive the $20 for every day of confinement. But
Congress recognized that witness fees could not fully compensate
witnesses for their lost time or income.
See, e.g., S.Rep.
No. 891, 90th Cong., 1st Sess., 36; S.Rep. No. 187, 81st Cong., 1st
Sess., 2. The petitioners point to no hint in any of the reports on
the various changes in compensation levels which could justify the
conclusion that Congress intended to provide more than $1 a day to
detained witnesses for the period of their pretrial
confinement.
[
Footnote 8]
It was also error to affirm the summary judgment for the
Government because there was a genuine issue of material fact
whether the petitioners had ever been paid for the days that they
actually attended court.
See Fed.Rule Civ.Proc. 56(c);
Arenas v. United States, 322 U. S. 419,
322 U. S.
432-434;
Sartor v. Arkansas Natural Gas Corp.,
321 U. S. 620,
321 U. S.
623-629. They alleged in their amended complaint that,
on many occasions, they testified for the Government and were not
paid $20 a day for such testimony. The Government agreed that they
were entitled to that compensation, but contended in its answer
that they had been so paid. No affidavits or other evidence was
submitted to support that contention, and the Court of Appeals, in
affirming summary judgment for the Government, did not comment on
this clear factual dispute.
Since a remand is required, we also note that the District Court
never explicitly ruled on the petitioners' motion to have this suit
declared a class action under Fed.Rule Civ.Proc. 23, and the Court
of Appeals did not discuss the issue. It will, of course, be
appropriate on remand for the District Court to determine whether
this suit was properly brought as a class action, and we
accordingly express no view on that issue.
[
Footnote 9]
See Stein v. New York, 346 U.
S. 156,
346 U. S. 184
("The duty to disclose knowledge of crime . . . is so vital that
one known to be innocent may be detained, in the absence of bail,
as a material witness");
Barry v. United States ex rel.
Cunningham, 279 U. S. 597,
279 U. S.
616-618.
[
Footnote 10]
"[I]t may be a sacrifice of time and labor, and thus of ease, of
profits, of livelihood. This contribution is not to be regarded as
a gratuity, or a courtesy, or an ill-required favor. It is a duty
not to be grudged or evaded. Whoever is impelled to evade or to
resent it should retire from the society of organized and civilized
communities, and become a hermit. He who will live by society must
let society live by him, when it requires to."
8 J. Wigmore, Evidence § 2192, p. 72 (J. McNaughton
rev.1961).
[
Footnote 11]
There is likewise no substance to the petitioners' argument that
the $1-a-day payment is so low as to impose involuntary servitude
prohibited by the Thirteenth Amendment.
Cf. Griffin v.
Breckenridge, 403 U. S. 88,
403 U. S.
104-105;
Jones v. Alfred H. Mayer Co.,
392 U. S. 409,
392 U. S.
437-444.
MR. JUSTICE BRENNAN, concurring in part and dissenting in
part.
I am in full agreement with much of the majority's opinion.
Construing 28 U.S.C. 1821, which authorizes compensation at the
rate of $20 per day to "[a] witness attending in any court of the
United States . . . ," the Court holds today that a person held in
jail as a material witness [
Footnote
2/1] is "attending in . . . court" each day that the
Page 410 U. S. 592
pertinent judicial proceeding is underway, even if the witness
is not physically present in the courtroom. But the majority also
holds that a jailed witness is not "attending in" court prior to
the inception of the judicial proceeding, even though he is held in
custody for no other purpose than to insure his appearance to give
testimony at trial. I reject that conclusion because, in my view,
it works an obvious and severe hardship on an incarcerated witness,
because it is compelled neither by the language nor the purposes of
the statute, and because the statute so construed would be
unconstitutional under the Due Process Clause of the Fifth
Amendment.
I
In addition to providing compensation of $20 per day for "each
day's attendance and for the time necessarily occupied in going to
and returning from" the court where the witness is to testify, the
statute also authorizes, in certain cases, an "additional allowance
of $16 per day for expenses of subsistence." 28 U.S.C. § 1821.
And the same statute states that,
"[w]hen a witness is detained in prison for want of security for
his appearance, he shall be entitled, in addition to his
subsistence, to a compensation of $1 per day."
In construing these statutory provisions, petitioners (citizens
of Mexico who entered the United States illegally), respondent, and
the Court agree on two points: first, that a jailed material
witness is entitled to compensation of $1 per day for each day that
he spends in confinement; and second, that a jailed material
witness is entitled to the additional compensation of $20 per day
for each day that a trial is in progress and that the witness is
physically present in the courtroom. The point in contention is
whether or not the jailed witness should receive the additional
compensation of $20 per day during the time after he is taken into
custody, but
Page 410 U. S. 593
before he is physically present in court. Petitioners contend
that he should. Respondent contends that he should not. The Court
holds that he should receive the compensation for each day that the
trial is in progress (whether or not he actually appears in court),
but that he should not receive it for the days spent in custody
before the trial is under way.
The Court predicates its conclusion on a superficially plausible
reading of the literal terms of the statute:
"The petitioners' interpretation of 'attendance' as beginning
with the first day of incarceration slights the statutory
requirement that attendance be
in court. A witness might
be detained many days before the case in which he is to testify is
called for trial. During that time, there is literally no court in
session in which he could conceivably be considered to be in
attendance."
Ante at
410 U. S.
583.
The Court holds, in other words, that, if the court is not in
session, then a jailed material witness cannot be said to be
"attending
in . . . court." (Emphasis added.) But the
correct interpretation of the phrase, "in court," is not as obvious
as it would at first appear. Read literally, the phrase would
appear to require that the witness spend the day within the four
walls of the courtroom, or, at the very least, the courthouse. Yet
the Court recognizes, and the Government concedes, that a witness
can be "in court" even if he is in a hotel room or a restaurant. I
share the view that physical presence in the courtroom is not
required to bring a witness within the reach of the statute. But I
cannot accept the Court's conclusion that a witness is "in court"
or not "in court," depending on whether or not the judicial
proceeding is technically under way.
Unfortunately, the Government has not described its practice in
compensating witnesses under § 1821 with
Page 410 U. S. 594
the kind of specificity that would simplify our analysis. It
would seem plausible, however, to assume that the practice might be
as follows: a witness subpoenaed to appear on Tuesday morning may
spend ail of Monday en route to the courthouse, only to learn on
Tuesday that the case will not be called as early as expected. If
the witness waits in the witness room all day each day until the
case is finally called on Friday, it would seem reasonable to
assume that he is entitled to compensation for his attendance on
Tuesday, Wednesday, and Thursday, even though the proceeding did
not begin until Friday. Whatever the Government's practice in such
a case, I would hold that the payment of compensation for those
three days would be permitted, if not required, by the terms of the
statute. Yet under the Court's rigid analysis of the phrase, "in
court," it would be unlawful for the Government to compensate the
witness, except for the days spent traveling to and from the
courthouse, for any day except Friday. The Court is apparently
bound to hold that, notwithstanding the physical presence of the
witness in the courthouse, he was not "in court" because the court
was not yet in session.
The obvious shortcoming of the Court's analysis is its
disregard, in construing the critical statutory phrase, of the
purposes of the statute. The statute is grounded on the view that a
subpoena to appear and give testimony will often entail substantial
disruption of one's affairs, a loss of income, and considerable
inconvenience. These dislocations, for which Congress has
authorized compensation, [
Footnote
2/2] will exist whether a witness is required to wait in a
witness room, a prosecutor's office, a courtroom, or
Page 410 U. S. 595
a hotel room. For that reason, the Court is correct in its
conclusion that a witness may be "in court" for the purposes of the
statute even though he is not, in fact, in the courthouse. But that
same purposive analysis refutes the Court's suggestion that the
pendency of a judicial proceeding is a precondition to the payment
of witness fees. Surely the fact that the court is not yet in
session is small comfort to the witness who is required to appear
and wait for the calling of his case. His daily loss of income does
not mysteriously increase as soon as the judge appears behind the
bench. Nor, if he is unlucky enough to be held in custody for want
of bail, does the infringement on his liberty become less
burdensome or the assault on his dignity less severe. Whatever the
status of the judicial proceeding, it remains clear that the
witness is held in jail for a single purpose: to serve the
interests of the court. And it is the unquestioned purpose of the
statute to insure that witnesses who are inconvenienced to serve
the interests of the court are compensated, at least in part, for
the service they have given. I cannot ascribe to Congress the
essentially irrational view that a day spent in attendance on a
pending trial is inherently a day more worthy of compensation than
a day spent in attendance on a trial that is not yet under way.
Nothing should or was intended to turn on whether a trial is
actually in progress.
II
My conclusion that the majority has misconstrued the statute is
fortified by the conviction that the statute, as interpreted by the
Court, would be invalid under the Due Process Clause of the Fifth
Amendment.
Bolling
Page 410 U. S. 596
v. Sharpe, 347 U. S. 497
(1954). The majority discerns a
"reasonable basis for distinguishing the compensation paid for
pretrial detention from the fees paid for attendance at trial.
Pretrial confinement will frequently be longer than the period of
attendance on the court, and, throughout that period of
confinement, the Government must bear the cost of food, lodging,
and security for detained witnesses. Congress could thus reasonably
determine that, while some compensation should be provided during
the pretrial detention period, a minimal amount was justified,
particularly in view of the fact that the witness has a public
obligation to testify."
Ante at
410 U. S.
590.
In my view, that assertion is inadequate to the task of
justifying this discriminatory classification scheme. First, as
construed by the Court, the scheme clearly does not treat jailed
material witnesses in a manner which is in any sense equivalent to
the treatment of subpoenaed witnesses. Rather, the Court
establishes two distinct classes of inconvenienced witnesses: those
who are burdened by a subpoena to appear, and who receive
compensation for each day of dislocation, and those who are
burdened by a term in jail, but who are compensated only for the
days of dislocation which follow the inception of trial. The Court
apparently denies this inequality, asserting that,
"[d]uring the period that elapses before his attendance on a
court, a witness who is not incarcerated gets no compensation
whatever from the Government. An incarcerated witness, on the other
hand, gets one dollar a day during that period, in addition to
subsistence in kind."
Ante at
410 U. S. 590.
But the appropriate point of comparison is not the treatment of
incarcerated witnesses before trial with the treatment of
nonincarcerated witnesses
Page 410 U. S. 597
before trial. The statement that a subpoenaed witness receives
no compensation for the period which precedes the onset of trial is
true but irrelevant. Naturally the witness receives no
compensation, he has sustained no injury. By hypothesis, the
subpoena directs the witness to appear at a time when trial is at
least scheduled to begin. In practical effect, therefore, the
subpoenaed witness is compensated in full for each day of
inconvenience, while the jailed witness may endure the
"inconvenience" of a lengthy term in jail and receive significant
compensation only for the days of confinement which happen to
coincide with trial.
Moreover, this discrimination against jailed witnesses cannot be
justified by reference to the fact -- again, true but irrelevant --
that the "witness has a public obligation to testify."
Ante at
410 U. S. 590.
The identical "public obligation" is imposed on the subpoenaed
witness, and the existence of the obligation does not rationalize
the heavier burden placed on the jailed witness in seeking
compensation for his days of dislocation. And since the jailed
witness carries the same obligation to testify both before and
after trial has begun, its existence does not explain a scheme that
provides significant compensation only for days of confinement
during trial.
If the statutory scheme is to be upheld, it can only be on the
theory that Congress has made a rational attempt to impose some
limits on the amount of money which will be paid out to any given
witness under the scheme. I can assume that the imposition of such
a ceiling on expenditures is, in itself, a permissible goal. And
since witness fees could, in some instances, reach staggering
amounts, I can assume that Congress has the power to impose an
across-the-board cut-off --
e.g., $1,000 per witness -- on
the fees allowable under the Act. But these assumptions do not
relieve us of the obligation to determine whether the particular
approach Congress
Page 410 U. S. 598
has used in imposing a cut-off is sufficiently rational to
withstand constitutional attack.
Cf. Dandrige v. Williams,
397 U. S. 471,
397 U. S.
483-487 (1970). I conclude that it is not.
As the Court construes the statutory scheme, a material witness
who is held in jail for four months in anticipation of a one-day
trial will receive in compensation $141 -- $1 per day for each of
120 days, and $21 for the day of trial. By contrast, a witness who
is subpoenaed to appear on the first day of trial but who, as a
result of preliminary motions, adjournment, and miscellaneous
delays, is not called to appear until two weeks have passed, will
receive $280 in compensation, plus a subsistence allowance. However
legitimate the governmental interest in imposing some limit on the
expenditure of money to witnesses, the mere assertion of that
interest cannot save a classification scheme that pays to a witness
who spends two weeks in a hotel a sum of money greatly in excess of
the amount made available to one who spends four months in the less
congenial atmosphere of a courthouse jail. I can see no rational
basis for this appalling difference in treatment. [
Footnote 2/3]
Page 410 U. S. 599
The classification scheme we uphold today cannot be considered a
rational attempt to preserve the Government's financial resources.
[
Footnote 2/4] Regrettably, it
seems to
Page 410 U. S. 600
me little more than an attempt to punish those who are unable to
give bail as a guarantee of their appearance at trial, and who,
almost by definition, lack the power and resources to remedy their
unfortunate plight. As my Brother DOUGLAS points out,
"[w]e cannot allow the Government's insistent reference to these
Mexican citizens as 'deportable aliens' to obscure the fact that
they come before us as innocent persons who have not been charged
with a crime or incarcerated in anticipation of a criminal
prosecution."
Post at
410 U. S. 604.
They have been held in custody only to insure their presence at
trial. I would not impute to Congress an intent to penalize these
petitioners by holding the injury they have suffered less worthy of
compensation than the inconvenience to a witness who is subpoenaed
to appear at trial. I would hold, consistently with a fair reading
of the statute in light of its purposes, that petitioners are
entitled to compensation at the rate of $21 per day for each day
they spend in custody while awaiting the call to appear in
court.
[
Footnote 2/1]
Fed.Rule Crim.Proc. 46(b), at the time this case arose, provided
that, where a witness' testimony was "material" in any criminal
proceeding and where it might become impracticable to secure the
presence of the witness by subpoena, the court might require the
witness to give bail for his appearance. If the witness failed to
give bail, the court might order his incarceration pending final
disposition of the proceeding in which his testimony was
needed.
[
Footnote 2/2]
The Government argues at length that Congress did not intend to
provide full compensation to a witness or to insure the witness
against all lost earnings.
See Brief for United States
124. The Government does not dispute, however, that the
congressional purpose was to provide at least partial compensation
for the expenses, dislocation, and income loss attributable to
compelled attendance as a witness.
[
Footnote 2/3]
Of course, where the Government detains a material witness
pending trial, its total financial burden is not limited to the
payment of $1 per day under 28 U.S.C. § 1821. The Government
also assumes the expense of feeding and housing the incarcerated
witness. Nevertheless, I cannot conclude that this added expense
affords a rational basis for imposing an arbitrary ceiling on the
payment of witness fees to a jailed witness. First, the Government
makes no attempt to justify the statute on this ground, and we are
not advised of the marginal cost to the Federal Government of
holding a material witness in an existing penal facility. Second,
the legislative history of the scheme evidences no particular
congressional concern for the costs of incarceration, nor any
effort to limit the payment of witness fees because of this added
expense. Third, even if the marginal costs of incarceration are
substantial, that fact cannot explain the absence of any limits
whatsoever on the witness fees that can be paid to a
nonincarcerated witness. And since a nonincarcerated witness may be
eligible for a subsistence allowance of $16 per day in addition to
the $20 daily fee, the amount of money involved can be very large
indeed. Finally, and most important, while the Government has an
obvious interest in limiting its total expenditure on witnesses --
including the payment of fees, subsistence allowances, and
incarceration costs -- that interest cannot explain the payment of
higher
per diem fees to nonincarcerated witnesses than to
incarcerated witnesses. Even if the cost of keeping a witness in
jail is $36 per day, which is the amount paid each day to a
nonincarcerated witness, it does not follow that the payments are
equivalent from the standpoint of the witnesses. The jailed witness
is inconvenienced no less than the subpoenaed witness, yet his rate
of compensation is dramatically, and inexplicably, less.
[
Footnote 2/4]
Nor can the scheme be justified on the theory that one who is
too poor to give bail deserves only minimal compensation because he
is unlikely to incur any great financial loss during the period of
incarceration. The fact that a witness is unable to give bail is
hardly an indication that he is unemployed. In any case, the
statute is designed to compensate the witness not only for the loss
of income, but also for the inconvenience and disruption of his
personal affairs. Inconvenience is not the exclusive property of
the rich. Moreover, the witness who cannot give bail is likely to
be the one most in need of compensation to pay the expenses his
family will inevitably incur while he waits in jail for the
beginning of trial. As enacted by Congress, the scheme was thought
to provide compensation in an amount that is "more or less
arbitrary, but considered to be reasonably fair to the average
witness." S.Rep. No. 187, 81st Cong., 1st Sess., 2. There is no
indication that Congress thought some witnesses were so poor that
they could be deemed indifferent to compensation.
Thus, the Government's assertion that "payment of $21 per day
would serve as a chance bonus" for persons like petitioners who
presumably earn less than that amount per day, Brief for United
States 31, misses the point of the statutory scheme. By that
reasoning, the scheme would offer the same "chance bonus" to a
witness who earns $50,000 per year, but who is not required to
perform a daily service to earn that income. Wealth is not a
guarantee that income loss is substantial, just as poverty is not a
guarantee that the income loss is trivial.
MR. JUSTICE DOUGLAS, dissenting.
In my view, petitioners, all indigents, have been subject to
discrimination "so unjustifiable as to be violative of due
process."
Bolling v. Sharpe, 347 U.
S. 497,
347 U. S.
499.
Petitioners, citizens of Mexico allegedly brought into the
United States illegally, belong to that class of persons who as
material witnesses can be subpoenaed to testify. Each must suffer
at least limited invasion of his personal liberty to fulfill his
public obligation to provide evidence.
See United States v.
Bryan, 339 U. S. 323,
339 U. S. 331;
Blair v. United States, 250 U. S. 273,
250 U. S. 281.
Petitioners, however, also belong to a discrete subclass -- those
whose presence it might be impractical to secure by subpoena, and
thus were subject to detention pursuant
Page 410 U. S. 601
to former Fed.Rule Crim.Proc. 46(b) [
Footnote 3/1] if they could not post bail. The
deprivation they suffer is longer and more extensive than that of
the witness merely subject to a subpoena. They may spend months in
jail awaiting the few minutes or hours they will spend testifying.
Unlike other witnesses, they are not free to come or go while the
trial is not actually in progress. Nevertheless, the justification
for infringing their liberty remains the same. Former Rule 46(b)
was conceived as a tool [
Footnote
3/2] to insure
Page 410 U. S. 602
that the witness is available to testify, and any time spent
incarcerated is spent as a direct result of the obligation that
burdens all material witnesses. The comparison we are concerned
with, then, is between the compensation paid to the incarcerated
witness during the entire period his freedom to come or go is
curtailed and the compensation paid to a nonincarcerated witness
during the entire period he is subject to restraint. Although it is
true, as the majority notes, that the nonincarcerated witness is
paid nothing at all while court is not in session, the two classes
are hardly comparably situated at the time, for the nonincarcerated
witness is not subject to any substantial restraint as a result of
his subpoena.
Congress has seen fit to compensate all material witnesses at
the
per diem rate of $20 for each day's attendance "in any
court" (as defined by the majority) and for the necessary travel
time. 28 U.S.C. § 1821. Yet, Congress compensates those
incarcerated pursuant to former Rule 46(b) at the
per diem
rate of only $1. Thus, not only are petitioners subject to more
extensive deprivation of personal freedom, they also are denied
equivalent compensation while waiting to testify. [
Footnote 3/3] Because former
Page 410 U. S. 603
Rule 46(b) provided that only witnesses who failed to post bail
might be incarcerated, this discrimination in practice affected
just the indigent and resulted, therefore, in a suspect
classification based upon wealth. This invidious discrimination
against the poverty-stricken cannot be supported by some
speculative rational justification.
Ortwein v. Schwab,
post, p.
410 U. S. 661
(DOUGLAS, J., dissenting);
United States v. Kras,
409 U. S. 434,
409 U. S. 457
(opinion of DOUGLAS and BRENNAN, JJ.);
Boddie v.
Connecticut, 401 U. S. 371,
401 U. S. 383
(DOUGLAS, J., concurring in result). Surely, the Government's
desire to avoid the costs of compensation in addition to the
increased costs of food, lodging, and security does not rise above
that level. [
Footnote 3/4]
See
Boddie v. Connecticut, supra, at
401 U. S. 382;
Shapiro v. Thompson, 394 U. S. 618,
394 U. S.
633.
The majority
"cannot say that there is no reasonable basis for distinguishing
the compensation paid for pretrial detention from the fees paid for
attendance at trial."
I am not certain I can agree even with that position. The magic
transition period under the statute [
Footnote 3/5]
Page 410 U. S. 604
as construed by the majority is the beginning of trial. I find
the distinction wholly arbitrary. I do not see how it bears any
relevance to the quality of confinement; petitioners sacrifice
their time waiting to testify whether or not court is in
session.
Griffin v. Illinois, 351 U. S. 12, held
that an indigent defendant is denied equal protection of the laws
if he is barred from appealing on equal terms with other defendants
solely because of his indigence. In
Bandy v. United
States, 82 S. Ct. 11, 7 L. Ed. 2d 9 (DOUGLAS, J., in
chambers), I concluded that "no man should be denied release
[pending trial or judicial review] because of indigence."
Id. at 13, 7 L. Ed. 2d at 11. This principle seems ever
clearer and more forceful to me in circumstances where the
imprisoned have not been charged with or convicted of a crime. We
cannot allow the Government's insistent reference to these Mexican
citizens as "deportable aliens" to obscure the fact that they come
before us as innocent persons who have not been charged with a
crime or incarcerated in anticipation of a criminal prosecution. It
is true, of course, that petitioners do not challenge the
constitutionality of confining a material witness. But, in their
prayer for relief, they seek to enjoin the Government
"from any further incarceration of any person under such rule
under the present interpretation of 28 U.S.C. § 1821 at one
dollar ($1.00) per day total payment."
I conclude that petitioners are entitled to this relief unless
they are released on their personal recognizance.
[
Footnote 3/1]
Rule 46(b), at the time this case arose and before Rule 46 was
amended to conform it to the Bail Reform Act of 1966, read:
"Bail for Witness."
"If it appears by affidavit that the testimony of a person is
material in any criminal proceeding and if it is shown that it may
become impracticable to secure his presence by subpoena, the court
or commissioner may require him to give bail for his appearance as
a witness, in an amount fixed by the court or commissioner. If the
person fails to give bail the court or commissioner may commit him
to the custody of the marshal pending final disposition of the
proceeding in which the testimony is needed, may order his release
if he has been detained for an unreasonable length of time and may
modify at any time the requirement as to bail."
[
Footnote 3/2]
Mr. Justice Black and Mr. Justice Frankfurter dissented from
submission of the original Rules of Criminal Procedure. 323 U.S.
821.
Mr. Justice Black and I, in 1966, opposed the submission of
certain amendments to the Rules of Criminal Procedure to the
Congress. Mr. Justice Black's statement is to be found at 383 U.S.
1032, mine at 383 U.S. 1089. We thought at the time that some of
the amendments presented serious constitutional questions.
The fact that the Court approved the Rules without reading them
or debating them or weighing their merits does not, of course,
preclude a challenge to their constitutionality in a given
case.
But the imprimatur of this Court is on the Rules, and that gives
them mighty weight. It is possible to read former Rule 46(b) as
permitting release on personal recognizance. But experience has
shown that judges have not so read it. The result, as I indicate in
this opinion, is that former Rule 46(b) has borne down heavily on
indigents who would be good risks but could not put up the money to
buy a bail bond. Former Rule 46(b) as so construed -- and as
applied in the present case -- is therefore plainly
unconstitutional. Filling of the jails of San Antonio with men
whose only crime is the desire to find work and holding them there
at the caprice of the prosecutor is shocking, to say the very least
-- and traceable to the easy, offhand way in which the Court has
seemingly approved many Rules which touch not only matters of
public security but individual liberties as well.
[
Footnote 3/3]
The Solicitor General asserts that
"it is certainly not unreasonable or irrational for Congress to
authorize a minimal sum as payment to deportable aliens. There is
no indication that illegal aliens, like petitioners, even if
employed, would have earned wages averaging $20 or $21 per day for
a period of 30 or 60 days or longer."
This prompts two comments. In explaining a predecessor of the
current statute, the Senate Report stated:
"The amounts arrived at in this bill are considered to be more
fair than presently existing amounts, although it is recognized
that certain witnesses will not, under the proposed rates, be
adequately compensated. In order to fairly compensate everyone
appearing as a witness it would be necessary to have either a
graduated scale of fees, or, leave the amount of such fees in the
discretion of the judge. Neither was considered feasible, and
therefore the amounts arrived at herein are more or less arbitrary,
but considered to be reasonably fair to the average witness."
S.Rep. No. 187, 81st Cong., 1st Sess., .
Also, if the statute is to be measured as it applies to aliens,
it surely creates a suspect classification.
See Takahashi v.
Fish & Game Comm'n, 334 U. S. 410.
[
Footnote 3/4]
For each day the Government compensates a witness at the
per
diem rate of $20, it also pays the witness $16 to cover
subsistence expenses. I cannot believe that it costs the Government
more than $16 a day to feed an incarcerated witness. In any event,
the witness should not be taxed when he is imprisoned for the
convenience of the Government.
[
Footnote 3/5]
The majority tracks the legislative history of § 1821 and
concludes that it is "unenlightening." When compensation was first
paid to incarcerated witnesses in 1853, Act of Feb. 26, 1853,
§ 3, 10 Stat. 167, they were paid $1 per day, or 50�
less than a witness merely attending court. No subsistence was
paid, and we can assume that the differential related to this
factor. Over the years, Congress has increased the compensation
paid to material witnesses and added subsistence payments without
increasing the compensation paid to incarcerated witnesses.
Congress has not advanced any justification.