1. A federal district court which has imposed a sentence of
imprisonment upon a defendant in a criminal case has power, during
the same term of court, to amend the sentence by shortening the
term of imprisonment, although the defendant already has been
committed and has entered upon service of the sentence.
United
States v. Murra, 275 U. S. 347,
distinguished. P.
282 U. S.
306.
2. Thus, to reduce a sentence by amendment is as much a judicial
act as was the imposition of the sentence in the first instance; it
is not a usurpation of the pardoning power of the executive. P.
282 U. S. 311.
Response to a question certified by the circuit court of
appeals, on an appeal by the government from an order of the
district court reducing a sentence of imprisonment.
Page 282 U. S. 305
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This case is here on a certificate from the court below under §
239 of the Judicial Code, as amended by the Act of February 13,
1925, c. 229, 43 Stat. 936, 938, U.S.C.,
Page 282 U. S. 306
Title 28, § 346. Benz was indicted for a violation of the
National Prohibition Act. He entered a plea of guilty, and was
sentenced to imprisonment for a term of ten months beginning
December 27, 1929. While undergoing imprisonment under this
sentence, and before expiration of the term of the federal district
court which had imposed the sentence, he filed a petition asking
that the sentence be modified. The court, over the objection of the
United States, entered an order reducing the term of imprisonment
from ten to six months. The government appealed, and the court
below, desiring the instruction of this Court, certified the
following question:
"After a district court of the United States has imposed a
sentence of imprisonment upon a defendant in a criminal case, and
after he has served a part of the sentence, has that court, during
the term in which it was imposed, power to amend the sentence by
shortening the term of imprisonment?"
The contention of the government is that, after the defendant
has been committed and has entered upon service of a valid
sentence, the power of the court to alter the sentence, even at the
same term, has come to an end. In addition, some stress is put upon
the fact that the powers of the three departments of government are
separated by the Constitution, so that one of the departments may
not exercise the powers conferred upon either of the others, and it
is suggested that, from this separation, the implication fairly may
be drawn that a reduction by the court of a valid sentence after it
has been party served is, in effect, an invasion of the power to
pardon offenses, including the power to commute, vested in the
executive by Article II, § 2, cl. 1, of the Constitution.
The general rule is that judgments, decrees and orders are
within the control of the court during the term at which they were
made. They are then deemed to be "in the breast of the court"
making them, and subject to be
Page 282 U. S. 307
amended, modified, or vacated by that court.
Goddard v.
Ordway, 101 U. S. 745,
101 U. S. 752.
The rule is not confined to civil cases, but applies in criminal
cases as well, provided the punishment be not augmented.
In re Lange,
18 Wall. 163,
85 U. S.
167-174;
Bassett v. United
States, 9 Wall. 38. In the present case, the power
of the court was exercised to mitigate the punishment, not to
increase it, and is thus brought within the limitation. Wharton, in
Criminal Pl. and Pr. (9th ed.) § 913, says:
"As a general practice, the sentence, when imposed by a court of
record, is within the power of the court during the session in
which it is entered, and may be amended at any time during such
session, provided a punishment already partly suffered be not
increased."
The distinction that the court during the same term may amend a
sentence so as to mitigate the punishment, but not so as to
increase it, is not based upon the ground that the court has lost
control of the judgment in the latter case, but upon the ground
that to increase the penalty is to subject the defendant to double
punishment for the same offense in violation of the Fifth Amendment
to the Constitution, which provides that no person shall "be
subject for the same offence to be twice put in jeopardy of life or
limb." This is the basis of the decision in
In Re Lange,
supra. There, the punishment prescribed by statute was
imprisonment for not more than one year or a fine of not less than
$10 nor more than $200, but Lange was sentenced to one year's
imprisonment and to pay $200 fine. Five days after the imprisonment
had begun, after payment of the fine and during the same term,
Lange was brought before the same court on a writ of habeas corpus;
an order was entered vacating the former judgment, and he was again
sentenced to one year's imprisonment from that time. This Court
stated the rule to be, p.
85 U. S.
167:
"The general power of the court over its own judgments,
orders,
Page 282 U. S. 308
and decrees, in both civil and criminal cases, during the
existence of the term at which they are first made, is
undeniable."
The Court declared, however, that the power could not be so used
as to violate the constitutional guarantee against double
punishment, holding (p.
85 U. S. 173)
that this guaranty applied to all cases where a second punishment
is attempted to be inflicted for the same offense by a judicial
sentence:
"For of what avail is the constitutional protection against more
than one trial if there can be any number of sentences pronounced
on the same verdict? Why is it that, having once been tried and
found guilty, he can never be tried again for that offense?
Manifestly it is not the danger or jeopardy of being a second time
found guilty. It is the punishment that would legally follow the
second conviction which is the real danger guarded against by the
Constitution. But if, after judgment has been rendered on the
conviction, and the sentence of that judgment executed on the
criminal, he can be again sentenced on that conviction to another
and different punishment, or to endure the same punishment a second
time, is the constitutional restriction of any value? Is not its
intent and its spirit in such a case as much violated as if a new
trial has been had, and on a second conviction a second punishment
inflicted?"
"The argument seems to us irresistible, and we do not doubt that
the Constitution was designed as much to prevent the criminal from
being twice punished for the same offence as from being twice tried
for it."
But the court immediately proceeded to say, p.
85 U. S.
174:
"If the court, for instance, had rendered a judgment for two
years' imprisonment, it could, no doubt, on its own motion, have
vacated that judgment during the term and rendered a judgment for
one year's imprisonment; or, if no part of the sentence had been
executed, it could have rendered a judgment for two hundred dollars
fine after
Page 282 U. S. 309
vacating the first."
Then, returning to the question of double punishment, and
reciting that Lange had paid the fine and had undergone five days
of the one year's imprisonment first imposed, the court said, p.
85 U. S.
175:
". . . can the court vacate that judgment entirely, and, without
reference to what has been done under it, impose another punishment
on the prisoner on that same verdict? To do so is to punish him
twice for the same offence. He is not only put in jeopardy twice,
but put to actual punishment twice for the same thing."
The
Lange case and the
Bassett case,
supra, probably would have set at rest the question here
presented had it not been for a statement in
United States v.
Murray, 275 U. S. 347,
275 U. S. 358.
In that case, this Court held that, where the defendant had begun
to serve his sentence, the district court was without power, under
the Probation Act of March 4, 1925, to grant him probation, and,
citing
In re Lange as authority, said: "The beginning of
the service of the sentence in a criminal case ends the power of
the court, even in the same term, to change it." But the
Murray case involved the construction of the Probation
Act, not the general powers of the court over its judgments. The
words quoted were used by way of illustration bearing upon the
congressional intent, but were not necessary to the conclusion
reached. That they state the rule more broadly than the
Lange case warrants is apparent from the foregoing review
of that case.
The rule thus being settled for this Court by its prior
decisions, we need not discuss the conflicting state cases nor the
conflicting decisions of lower federal courts which are cited,
further than to say that the federal cases cited by the government
in support of its position are comparatively recent, and, at least
in some instances, rest upon the general statement in the
Murray case just quoted. The earlier view is to the
contrary. Thus, in the case of
In re Graves, 117 F. 798,
799, where a person had been resentenced
Page 282 U. S. 310
to serve for a period of one and one-half years after having
been imprisoned for a number of days under a sentence of two years,
the court refused to discharge him on habeas corpus, saying:
"It involves only the inquiry whether the court possessed the
power to recall the prisoner, set aside the sentence, and impose
another modified sentence during the same term, notwithstanding the
fact alleged that execution of the former sentence had commenced,
and, whatever diversity of opinion appears in other jurisdictions,
the doctrine is established in the federal courts that such power
exists, and that it is applicable as well where the original
sentence was in excess of jurisdiction. [Citing, among other cases,
Ex parte Lange and
Bassett v. United States,
supra.] In
Ex parte Lange, supra, the doctrine so
stated is distinctly recognized, but the case is distinguished as
one where the statute authorized imprisonment, or fine, in the
alternative only, and the sentence imposed both, and the majority
opinion merely holds that new sentence of imprisonment alone cannot
be imposed after payment of the fine, which operated as a
satisfaction of the prior judgment. The sentence under which this
petitioner is imprisoned is in all respects more favorable to him
than was the original sentence, and escape therefrom is sought on
the ground of change in the place of imprisonment after he had
'entered upon the service' of the first sentence."
"As the place of imprisonment was discretionary, and in no sense
affected the jurisdiction, and the power of the court over its own
judgment within the term is undeniable (
Ex parte Lange,
supra), I am clearly of opinion that the sentence and
commitment in question are valid, and, no ground appearing to grant
the petitioner the benefits of a writ of habeas corpus, the
application is denied. "
Page 282 U. S. 311
With this application of the rule and interpretation of the
prior decisions of this Court we entirely agree.
We find nothing in the suggestion that the action of the
district court in reducing the punishment after the prisoner had
served a part of the imprisonment originally imposed was a
usurpation of the pardoning power of the executive. The judicial
power and the executive power over sentences are readily
distinguishable. To render judgment is a judicial function. To
carry the judgment into effect is an executive function. To cut
short a sentence by an act of clemency is an exercise of executive
power which abridges the enforcement of the judgment, but does not
alter it
qua judgment. To reduce a sentence by amendment
alters the terms of the judgment itself, and is a judicial act as
much as the imposition of the sentence in the first instance.
The question propounded must be answered in the affirmative.
It is so ordered.