Hawker v. New York/Dissent Harlan

Mr. Justice HARLAN, dissenting.

By an indictment in the court of sessions of Kings county, N. Y., the present plaintiff in error was charged with the crime of abortion, committed September 1, 1877. He was found guilty, and sentenced, March 6, 1878, to imprisonment in the penitentiary for the term of 10 years.

Chapter 661 of the Laws of New York of 1893, as amended by the Laws of 1895, provides that 'any person who, after conviction of a felony, shall attempt to practice medicine, or shall so practice, shall be guilty of a misdemeanor,' etc.

The present indictment charged the plaintiff in error with the commission of the offense last stated, in that, having been convicted in 1878 of the above crime of abortion committed in 1877, he unlawfully, on the 22d day of February, 1896, in the city of New York (nearly 20 years after the commission of the crime of abortion), practiced medicine by 'then and there unlawfully medically examining, treating, and prescribing for Dora Hoenig.'

If the statute in force when the offense of abortion was committed had provided that, in addition to imprisonment in the penitentiary, the accused, if convicted, should not thereafter practice medicine, no one, I take it, would doubt that such prohibition was a part of the punishment prescribed for the offense. And yet it would seem to be the necessary result of the opinion of the court in the present case that a statute passed after the commission of the offense in 1877, and which, by its own force, made it a crime for the defendant to continue in the practice of medicine, is not an addition to the punishment inflicted upon him in 1878. I cannot assent to this view. It is, I think, inconsistent with the provision of the constitution of the United States declaring that no state shall pass an ex post facto law.

The scope and meaning of the ex post facto clause of the constitution was determined in Calder v. Ball, 3 Dall. 386, the opinion being delivered by Mr. Justice Chase. The classification there made of cases embraced by that provision has been universally accepted in the courts of this country, although this court said in Kring v. Missouri, 107 U.S. 221, 228, 2 Sup. Ct. 443, that it was not to be supposed that the opinion in Calder v. Ball undertook to define, by way of exclusion, all the casest o which the constitutional provision would be applicable. That classification was as follows: '(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, and makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the commission of the offense in order to convict the offender.' In U.S. v. Hall, 2 Wash. C. C. 366, Fed. Cas. No. 15,285, Mr. Justice Washington said 'that an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense, or its consequences, alters the situation of a party to his disadvantage.' And so it was held in Kring v. Missouri, 107 U.S. 221, 228, 2 Sup. Ct. 443, and in Re. Medley, Petitioner, 134 U.S. 160, 171, 10 Sup. Ct. 384.

If long after the commission of a crime, and long after the offender has suffered all the punishment prescribed at the time for its commission, a statute should, by its own force, and solely because of his conviction of that offense, take from him the right to further pursue his profession, would not such a statute inflict upon him a greater punishment than was annexed to the crime when committed, and alter the situation to his disadvantage, 'in relation to the offense or its consequences?' In my opinion, this question should receive an affirmative answer.

It was said in argument that the judgment below was sustained by Dent v. West Virginia, 129 U.S. 114, 9 Sup. Ct. 231. That case presented no question under the ex post facto clause of the constitution. It only involved the question whether any one could, of right, pursue the practice of medicine without obtaining a license to do so, if the state required a license as a condition of exercising the privilege of pursuing that profession. This court held that such a statute was within the reserved police power of the state, and consistent with the due process of law enjoined by the fourteenth amendment. It said: 'The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure, or tend to secure, them against the consequences of ignorance and incapacity, as well as of deception and fraud.' It was not the case of a state enactment which, by its own force, made it a crime for any person, lawfully engaged, when such act was passed, in the practice of the medical profession, to continue to do so, if he had at any time in his past life committed a felony, although he may have suffered all the punishment prescribed for such felony when it was committed. If the statute of West Virginia had been of that character, the same question would have been presented that arises under the statute of New York.

In Cummings v. Missouri, 4 Wall. 277, 321, this court said: 'The theory upon which our political institutions rest is that all men have certain inallienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions, are alike open to every one; and that, in the protection of these rights, all are equal before the law. Any deprivation or suspension of any of these right for past conduct is punishment, and can be in no other wise defined.' The court now holds that a legislative enactment does not inflict punishment for past conduct when it makes it a crime for any one lawfully engaged in the practice of medicine (as was the plaintiff in error) to continue in the pursuit of his chosen profession if at any time in the past, and although a half century may have intervened, he was convictedo f a felony of any character, notwithstanding he suffered the entire punishment prescribed for such felony when committed.

In Ex parte Garland, 4 Wall. 333, 377, which involved the validity of an act of congress requiring, among other things, a certain oath to be taken as a condition of the right of one to appear and be heard as an attorney at law by virtue of any previous admission to the bar, this court, referring to certain clauses of the act relating to past conduct, said: 'The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary vocations of life for past conduct can be regarded in no other light than as punishment for past conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate, and, instead of lessening, increases, its objectionable character. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included. In the exclusion which the statute adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed; and for other of the acts it adds a new punishment to that before prescribed, and it is thus brought within the further inhibition of the constitution against the passage of an ex post facto law.'

The statute in question, it is to be observed, takes no account whatever of the character, at the time of the passage, of the person whose previous conviction of a felony is made an absolute bar to his right to practice medicine. The offender may have become, after conviction, a new man in point of character, and so conducted himself as to win the respect of his fellow men, and be recognized as one capable, by his skill as a physician, of doing great good. But these considerations have no weight against the legislative decree embodied in a statute which, without hearing, and without any investigation as to the character or capacity of the person involved, takes away from him absolutely a right which was being lawfully exercised when that decree was passed. If the defendant had been pardoned of the offense committed by him in 1877, he would still, under the statute of 1895, have become a criminal if he continued in the practice of his profession.

It will not do to say that the New York statute does nothing more than prescribe the qualifications which, after its passage, must be possessed by those who practice medicine. Upon this point, Mr. Justice Patterson, of the supreme court of New York, well said: 'Assuming, for the purpose of the argument, that the legislature may require for the continuance in the practice of medicine that the practitioner shall possess professional knowledge and skill and also good moral character, it is obvious that such requirement must relate to a present status or condition of a person coming within the terms of the act. The law under which this appellant was indicted does not deal with his present moral character. It seizes upon a past offense, and makes that, and that alone, the substantial ingredient of a new crime, and the conviction of it years ago the conclusive evidence of that new crime. It will be observed that this statue includes any and all felonies,-not only those committed in connection with the profession of medicine and surgery, but any and every felony in the whole catalogue of crime, whether committed here or in another jurisdiction. Its design is to deprive convicted felons of the right of practicing at all. Clearly, it acts directly upon and enhancest he punishment of the antecedently committed offense by depriving the person of his property and right, and preventing his earning his livelihood in his profession, only because of his past, and, in this case, expiated, offense against the criminal law. The prisoner has committed no new crime except that which the statute has created out of the old. He had absolutely the right to practice medicine the day before that statute was passed. His former conviction entailed the punishment of imprisonment and disfranchisement as a voter, but it did not take away his property in the right to earn his living on the expiration of his imprisonment, by engaging in the profession of which he was and is a member. His civil rights were not extinguished, but only suspended, during his imprisonment. 2 Rev. St. p. 701, § 19; Pen. Code. § 710.'

I concur entirely in these views, and must withhold my assent to the opinion of the majority.

Mr. Justice PECKHAM and Mr. Justice McKENNA concur in this dissent.