On May 6, 1971, petitioners were convicted and sentenced for
narcotics offenses committed in March, 1971. They received the
minimum five-year sentences under a provision that was mandatory
and made the sentences not subject to suspension, probation, or
parole. Effective May 1, 1971, that provision was repealed and
liberalized by the Comprehensive Drug Abuse Prevention and Control
Act of 1970. On petitioners' motion for vacation of their sentences
and remand for resentencing, the Court of Appeals held that the new
provisions were unavailable in view of the Act's saving clause,
which made them inapplicable to "prosecutions" antedating the Act's
effective date.
Held:
1. The word "prosecutions" in the saving clause is to be
accorded its normal legal sense, under which sentencing is a part
of the concept of prosecution. Therefore, the saving clause barred
the District Judge from suspending sentence or placing petitioners
on probation. Pp.
410 U. S.
607-610.
2. Under the saving clause, parole under 18 U.S.C. § 4208(a) is
likewise unavailable to petitioners, since, by its terms, that
provision is inapplicable to offenses for which a mandatory penalty
is provided; and, in any event, a decision to grant early parole
under that provision must be made "[u]pon entering a judgment of
conviction," which occurs before the end of the prosecution. Pp.
410 U. S.
610-611.
455 F.2d 1181, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined, and in Part I of which BRENNAN and WHITE, JJ., joined.
BRENNAN and WHITE, JJ., filed a statement concurring in the
judgment,
post, p.
410 U. S. 611.
DOUGLAS, J., filed a dissenting opinion,
post, p.
410 U. S.
612.
Page 410 U. S. 606
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In this case, we must decide whether a District Judge may impose
a sentence of less than five years, suspend the sentence, place the
offender on probation, or specify that he be eligible for parole,
where the offender was convicted of a federal narcotics offense
that was committed before May 1, 1971, but where he was sentenced
after that date. Petitioners were convicted of conspiring to
violate 26 U.S.C. § 4705(a) (1964 ed.) by selling cocaine not in
pursuance of a written order form, in violation of 26 U.S.C. §
7237(b) (1964 ed.). The conspiracy occurred in March, 1971. At that
time, persons convicted of such violations were subject to a
mandatory minimum sentence of five years. The sentence could not be
suspended, nor could probation be granted, and parole pursuant to
18 U.S.C. § 4202 was unavailable. 26 U.S.C. § 7237(d) (1964 ed. and
Supp. V). These provisions were repealed by §§ 1101(b)(3)(A) and
(b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control
Act of 1970, 84 Stat. 1292. The effective date of that Act was May
1, 1971, five days before petitioners were convicted.
Each petitioner was sentenced to a five-year term. [
Footnote 1] On appeal to the Court of
Appeals for the First Circuit,
Page 410 U. S. 607
various points, not here relevant, were raised. Following
affirmance of their convictions, petitioners moved that their
sentences be vacated and their cases be remanded to the District
Court for resentencing pursuant to Fed.Rule Crim.Proc. 35. In their
motion, they contended that the District Court should have
considered "certain sentencing alternatives, including probation,
suspension of sentence and parole" which became available on May 1,
1971. The Court of Appeals considered this motion as an "appendage"
to the appeal. It held that the specific saving clause of the 1970
Act, § 1103(a), read against the background of the general saving
provision, 1 U.S.C. § 109, required that "narcotics offenses
committed prior to May 1, 1971, are to be punished according to the
law in force at the time of the offense," and that, "under the
mandate of § 109, the repealed statute, § 7237(d) is
[to] be
treated as still remaining in force.'" 455 F.2d 1181, 1190, 1191.
Accordingly, the Court of Appeals held that the trial judge lacked
power to impose a lesser sentence.
We granted the petition for writ of certiorari, 407 U.S. 908
(1972), in order to resolve the conflict between the First and
Ninth Circuits,
see United States v. Stephens, 449 F.2d
103 (CA9 1971). [
Footnote
2]
I
At common law, the repeal of a criminal statute abated all
prosecutions which had not reached final disposition in the highest
court authorized to review them.
See Bell v. Maryland,
378 U. S. 226,
378 U. S. 230
(1964);
Norris v.
Crocker, 13 How. 429 (1852). Abatement by repeal
included a statute's repeal and reenactment with different
Page 410 U. S. 608
penalties.
See 1 J. Sutherland, Statutes and Statutory
Construction § 2031 n. 2 (3d ed.1943). And the rule applied even
when the penalty was reduced.
See, e.g., The King v.
M'Kenzie, 168 Eng.Rep. 881 (Cr. Cas. 1820);
Beard v.
State, 74 Md. 130, 21 A. 700 (1891). To avoid such results,
legislatures frequently indicated an intention not to abate pending
prosecutions by including in the repealing statute a specific
clause stating that prosecutions of offenses under the repealed
statute were not to be abated.
See generally Note, Today's
Law and Yesterday's Crime: Retroactive Application of Ameliorative
Criminal Legislation, 121 U.Pa.L.Rev. 120, 121-130 (1972).
Section 1103(a) of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 is such a saving clause. It provides:
"Prosecutions for any violation of law occurring prior to the
effective date of [the Act] shall not be affected by the repeals or
amendments made by [it] . . . or abated by reason thereof."
Petitioners contend that the word "prosecutions" in § 1103(a)
must be given its everyday meaning. When people speak of
prosecutions, they usually mean a proceeding that is under way in
which guilt is to be determined. In ordinary usage, sentencing is
not part of the prosecution, but occurs after the prosecution has
concluded. In providing that "[p]rosecutions . . . shall not be
affected," § 1103(a) means only that a defendant may be found
guilty of an offense which occurred before May 1, 1971. The repeal
of the statute creating the offense does not, on this narrow
interpretation of § 1103(a), prevent a finding of guilt. But §
1103(a) does nothing more, according to petitioners.
Although petitioners' argument has some force, we believe that
their position is not consistent with Congress'
Page 410 U. S. 609
intent. Rather than using terms in their everyday sense, "[t]he
law uses familiar legal expressions in their familiar legal sense."
Henry v. United States, 251 U. S. 393,
251 U. S. 395
(1920). The term "prosecution" clearly imports a beginning and an
end.
Cf. Kirby v. Illinois, 406 U.
S. 682 (1972);
Mempa v. Rhay, 389 U.
S. 128 (1967).
In
Berman v. United States, 302 U.
S. 211 (1937), this Court said,
"Final judgment in a criminal case means sentence. The sentence
is the judgment.
Miller v. Aderhold, 288 U. S.
206,
288 U. S. 210;
Hill v.
Wampler, 298 U. S. 460,
298 U. S.
464."
Id. at
302 U. S. 212.
In the legal sense, a prosecution terminates only when sentence is
imposed.
See also Korematsu v. United States, 319 U.
S. 432 (1943);
United States v. Murray,
275 U. S. 347
(1928);
Affronti v. United States, 350 U. S.
79 (1955). [
Footnote
3] So long as sentence has not been imposed, then, § 1103(a) is
to leave the prosecution unaffected. [
Footnote 4]
We therefore conclude that the Court of Appeals properly
rejected petitioners' motion to vacate sentence and remand for
resentencing. The District Judge had no power to consider
suspending petitioners' sentences or placing them on probation.
Those decisions must ordinarily be made before the prosecution
terminates,
Page 410 U. S. 610
and § 1103(a) preserves the limitations of § 7237(d) on
decisions made at that time.
II
The courts of appeals that have dealt with this problem have
failed, however, to consider fully the special problem of the
parole eligibility of offenders convicted before May 1, 1971. The
Seventh and Ninth Circuits hold that such offenders are eligible
for parole. [
Footnote 5] The
First Circuit in this case stated that petitioners were "ineligible
for suspended sentences,
parole, or probation." 455 F.2d
at 1191 (emphasis added).
In the federal system, offenders may be made eligible for parole
in two ways. Any federal prisoner "whose record shows that he has
observed the rules of the institution in which he is confined, may
be released on parole after serving one-third of" his sentence. 18
U.S.C. § 4202. Alternatively, the District Judge,
"[u]pon entering a judgment of conviction . . . may (1)
designate in the sentence of imprisonment imposed a minimum term,
at the expiration of which the prisoner shall become eligible for
parole, which term may be less than, but shall not be more than
one-third of the maximum sentence imposed by the court, or (2) the
court may fix the maximum sentence of imprisonment to be served, in
which event the court may specify that the prisoner may become
eligible for parole at such time as the board of parole may
determine."
18 U.S.C. § 4208(a).
Page 410 U. S. 611
Section 1103(a) clearly makes parole unavailable under the
latter provision. As we have said, sentencing is part of the
prosecution. The mandatory minimum sentence of five years must
therefore be imposed on offenders who violated the law before May
1, 1971. And Congress specifically provided that § 4208(a) does not
apply to any offense "for which there is provided a mandatory
penalty." Pub.L. 8752, § 7, 72 Stat. 847. In any event, the
decision to make early parole available under § 4208(a) must be
made "[u]pon entering a judgment of conviction," which occurs
before the prosecution has ended. Section 1103(a) thus means that
the District Judge cannot specify at the time of sentencing that
the offender may be eligible for early parole.
That was the only question before the Court of Appeals, and it
is therefore the only question before us. Petitioners' motion, on
which the Court of Appeals ruled, requested a remand so that the
District Judge could consider the sentencing alternatives available
to him under the Comprehensive Drug Abuse Prevention and Control
Act of 1970. That Act, however, did not expand the choices open to
the District Judge in this case, and the Court of Appeals correctly
denied the motion to remand. The availability of parole under the
general parole statute, 18 U.S.C. § 4202, is a rather different
matter, [
Footnote 6] on which
we express no opinion.
Affirmed.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITE join Part I of the
Court's opinion, and would affirm for the reasons there expressed.
They are also of the view that
Page 410 U. S. 612
§ 1103(a) forecloses the availability of parole under both 18
U.S.C. § 4202 and 18 U.S.C. § 4208(a), and that, even if this were
debatable as to § 4202, the general saving statute, 1 U.S.C. § 109,
clearly mandates that conclusion as to that section. They therefore
do not join Part II of the Court's opinion.
[
Footnote 1]
Petitioners Bradley, Helliesen, and Odell were found guilty also
of unlawfully carrying a firearm during the commission of a felony,
in violation of 18 U.S.C. § 924(c)(2). Each was sentenced to one
year in prison; the sentences were suspended, and each was placed
on probation for three years on these counts.
[
Footnote 2]
See also United States v. McGarr, 461 F.2d 1 (CA7
1972);
United States v. Fiotto, 454 F.2d 252 (CA2
1972).
[
Footnote 3]
These cases involve determining whether a judgment in a criminal
case is final for the purpose of appeal and determining whether the
function of the trial judge has been concluded so that he may not
alter the sentence previously imposed to include probation. The
precise issues are, of course, different from the issue in this
case. But these cases do show the point at which a prosecution
terminates, and that is the issue here.
[
Footnote 4]
Petitioners also argue that imposition of sentence precedes the
suspension of sentence and the grant of probation. But the actions
of the District Judge in imposing sentence and then ordering that
it be suspended are usually so close in time that it would be
unrealistic to hold that Congress intended so to fragment what is
essentially a single proceeding.
[
Footnote 5]
See n 2,
supra. We were informed at oral argument that
"the Board of Parole is now considering as eligible for parole
only defendants who have been sentenced in the Seventh and Ninth
Circuits for narcotics offenses."
Tr. of Oral Arg. 23. Our disposition of this case has no bearing
on the power of the Board of Parole to consider parole eligibility
for petitioners under 18 U.S.C. § 4202.
See infra at
410 U. S.
611.
[
Footnote 6]
The decision to grant parole under § 4202 lies with the Board of
Parole, not with the District Judge, and must be made long after
sentence has been entered and the prosecution terminated. Whether §
1103(a) or the general saving statute, 1 U.S.C. § 109, limits that
decision is a question we cannot consider in this case.
MR JUSTICE DOUGLAS, dissenting.
The correct interpretation of the word "prosecutions" as used in
§ 1103(a) of the 1970 Act was, in my view, the one given by the
Court of Appeals of the Ninth Circuit in
United States v.
Stephens, 449 F.2d 103, 105:
"Prosecution ends with judgment. The purpose of the section has
been served when judgment under the old Act has been entered and
abatement of proceedings has been avoided. At that point,
litigation has ended, and appeal is available.
Korematsu v
United States, 319 U. S. 432,
319 U. S.
63 S.Ct. 1124, 87 L Ed. 1497 (1943). What occurs
thereafter -- the manner in which judgment is carried out, executed
or satisfied, and whether or not it is suspended -- in no way
affects the prosecution of the case."
The problem of ambiguities in statutory language is not peculiar
to legislation dealing with criminal matters. And the question as
to how those ambiguities should be resolved is not often
rationalized. The most dramatic illustration, at least in modern
times, is illustrated by
Rosenberg v. United States,
346 U. S. 273,
where a divided Court resolved an ambiguity in a statutory scheme
against life, not in its favor. The instant case is not of that
proportion, but it does entail the resolution of unspoken
assumptions -- those favoring the
status quo of prison
systems as opposed to those who see real rehabilitation as the only
cure of the present prison crises. As Mr. Justice Holmes said,
"judges do and must legislate, but they can do so only
interstitially; they are confined from
Page 410 U. S. 613
molar to molecular motions."
Southern Pacific Co. v.
Jensen, 244 U. S. 205,
244 U. S. 221
(dissenting opinion).
*
Judges do not make legislative policies. But, in construing an
ambiguous word in a criminal code, I would try to give it a meaning
that would help reverse the long trend in this Nation not to
consider a prisoner a "person" in the constitutional sense. Fay
Stender, writing the introduction to Maximum Security, p. X, has
described some of the "tremendously sophisticated defenses against
the least increase in the enforceable human rights available to the
prisoner." (E. Pell ed., Bantam Books 1973).
A less strict and rigid meaning of the present Act would be only
a minor start in the other direction. But it is one I would
take.
* Mr. Justice Holmes also said:
"[I]n substance, the growth of the law is legislative. And this
in a deeper sense than that that which the courts declare to have
always been the law is, in fact, new. It is legislative in its
grounds. The very considerations which the courts most rarely
mention, and always with an apology, are the secret root from which
the law draws all the juices of life. We mean, of course,
considerations of what is expedient for the community concerned.
Every important principle which is developed by litigation is, in
fact and at bottom, the result of more or less definitely
understood views of public policy; most generally, to be sure,
under our practice and traditions, the unconscious result of
instinctive preferences and inarticulate convictions, but
nonetheless traceable to public policy in the last analysis. And as
the law is administered by able and experienced men who know too
much to sacrifice good sense to a syllogism, it will be found that,
when ancient rules maintain themselves in this way, new reasons
more fitted to the time have been found for them, and that they
gradually receive a new content and at last a new form from the
grounds to which they have been transplanted. The importance of
tracing the process lies in the fact that it is unconscious, and
involves the attempt to follow precedents, as well as to give a
good reason for them, and that hence, if it can be shown that
one-half of the effort has failed, we are at liberty to consider
the question of policy with a freedom that was not possible
before."
Common Carriers and the Common Law, 13 Am.L.Rev. 609, 630-631
(1879).