Dissenting Opinion
Justice Brandeis wrote the dissenting opinion, which disagreed with the majority on key issues.
In regards to findings of the Wong Wing case, the dissenters felt the case had been improperly applied, agreeing with the United States’ case. In particular, the minority found the Detroit House of Correction to be a penitentiary. A court commissioner, and not a grand jury, sentenced Wong Wing to an infamous penitentiary imprisonment; this is why the Wong Wing punishment was in violation of the Fifth Amendment. The minority opinion devoted several sentences to the suggestion that the workhouse at Occoquan was nothing like a penitentiary. Therefore, they focused on the matter of hard labor as a trigger for infamy.
Citing several examples from colonial America or examples in history of times when hard labor was considered an acceptable punishment, the minority sided with the United States: “It is not the provision for hard labor, but the imprisonment in a penitentiary, which now renders a crime infamous.” The minority disagreed that Wong Wing found the presence of hard labor alone to be an infamous sentence.
The minority noted a statement made in Ex Parte Wilson: “‘What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another’.” Because the Constitution contains no mention of hard labor, and the Fifth Amendment only refers to infamous crimes, the minority contended the two could not be linked together, because “commitment to Occoquan for a short term for nonsupport of minor children is certainly not an infamous punishment.”
However, this statement ignored another finding of Ex Parte Wilson mentioned by the majority: “… if imprisonment was in any other place than a penitentiary and was to be at hard labor, the latter … made it infamous …” Also, this same cited statement would seem to apply to the majority opinion as well: through the cases of Wong Wing and now United States v. Moreland, public opinion had changed to include any hard labor as the very definition of infamy.
Justice Brandeis contended that the Court had never held hard labor alone to be an infamous punishment; it did so in its Moreland opinion.
Read more about this topic: United States V. Moreland
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