Per Curiam.

LEE, COMMISSIONER OF CORRECTIONS OF ALABAMA, ET AL. v. WASHINGTON ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA.

No. 75. Argued November 7, 1967.-Decided March 11, 1968. A three-judge District Court declared Alabama statutes requiring racial segregation in prisons unconstitutional and established a schedule for desegregation. The State's challenges of the judgment based on Fed. Rule Civ. Proc. 23 (relating to class actions), the claimed constitutionality of the statutes, and the failure to allow for necessary prison security and discipline, held to be without merit.

263 F. Supp. 327, affirmed.

Nicholas S. Hare, Special Assistant Attorney General of Alabama, argued the cause for appellants. With him on the briefs were MacDonald Gallion, Attorney General, Gordon Madison, Assistant Attorney General, and J. M. Breckenridge.

Charles Morgan, Jr., argued the cause for appellees. With him on the brief were Orzell Billingsley, Jr., and Melvin L. Wulf.

PER CURIAM.

This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails, and establishing a schedule for desegregation of these institutions. The State's contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and

BLACK, HARLAN, and STEWART, JJ., concurring. 390 U.S.

jails make no allowance for the necessities of prison security and discipline, but we do not so read the "Order, Judgment and Decree" of the District Court, which when read as a whole we find unexceptionable.

The judgment is affirmed.

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART, concurring.

In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court's opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court's firm commitment to the Fourteenth Amendment's prohibition of racial discrimination.

Per Curiam.

WALKER v. WAINWRIGHT, CORRECTIONS
DIRECTOR.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 786, Misc. Decided March 11, 1968.

Petitioner, under life sentence for murder, was later sentenced to five years for assault, to commence when he had completed the murder sentence. Petitioner challenged the murder conviction on constitutional grounds, but the District Court denied a writ of habeas corpus on the sole ground that, in view of the sentence for assault, a favorable decision would not result in the petitioner's immediate release from prison, and that the court was therefore powerless to consider his claims. The Court of Appeals rejected his application for a certificate of probable cause. Held: Whatever its other functions, the writ of habeas corpus is available to test the legality of a prisoner's current detention, and it is immaterial that another prison term might await him if he should establish the unconstitutionality of his present imprisonment. Certiorari granted; reversed and remanded.

PER CURIAM.

On September 30, 1960, the petitioner was convicted of first degree murder and was sentenced to life imprisonment. On May 25, 1965, he was found guilty of aggravated assault and was sentenced to five years in the state penitentiary, to commence when he had completed serving the sentence for murder.

Having attempted without success to challenge his murder conviction on federal constitutional grounds in the state courts, the petitioner sought a writ of habeas corpus in the United States District Court for the Southern District of Florida. He contended that he had been deprived of counsel at his preliminary hearing, that a coerced confession had been used against him at trial, and that he had been denied the right to an effective appeal.

The District Court observed that, even if the petitioner's contentions were accepted and his murder conviction reversed, he would still face a five-year prison term for aggravated assault. Because a favorable decision on the murder conviction would not result in the petitioner's immediate release from prison, the District Court thought itself powerless to consider the merits of his claims and therefore denied his habeas corpus petition without further consideration. In short, the District Court held that the petitioner could not challenge his life sentence until after he had served it. The United States Court of Appeals for the Fifth Circuit summarily rejected the petitioner's application for a certificate of probable cause, and he then sought review in this Court.

In reaching its conclusion, the District Court relied upon McNally v. Hill, 293 U. S. 131, for the broad proposition that the "Writ of Habeas Corpus may not be used as a means of securing judicial decision of a question which, even if determined in the prisoner's favor, could not result in his immediate release." The McNally decision, however, held only that a prisoner cannot employ federal habeas corpus to attack a "sentence which [he] has not begun to serve." 293 U. S., at 138. Here the District Court has turned that doctrine inside out by telling the petitioner that he cannot attack the life sentence he has begun to serve until after he has finished serving it. We need not consider the continued vitality of the McNally holding in this case, for neither McNally nor anything else in our jurisprudence can support the extraordinary predicament in which the District Court has placed this petitioner.

Whatever its other functions, the great and central office of the writ of habeas corpus is to test the legality of a prisoner's current detention. The petitioner is now serving a life sentence imposed pursuant to a conviction for murder. If, as he contends, that conviction

was obtained in violation of the Constitution, then his confinement is unlawful. It is immaterial that another prison term might still await him even if he should successfully establish the unconstitutionality of his present imprisonment.

The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.