1. The federal District Court, acting on the request of a
probation officer based on information received by him concerning a
probationer's delinquency, is without power to revoke a suspension
of sentence and commit the probationer to prison to serve the
sentence where the probationer was not "taken before the court" and
afforded an opportunity to be heard in answer to the charges. Act
of March 4, 1925, c. 521, § 2, as amended. P.
295 U. S.
492.
2. This privilege of the probationer is not a right guaranteed
by the Constitution, but is based upon the Act of Congress
governing the procedure in such cases. P.
295 U. S.
492.
3. The requirement of the Act of March 4, 1925, c. 521, § 2,
that, upon the arrest of a probationer, he " shall forthwith be
taken before the court" is mandatory in meaning as well as in form.
P.
295 U. S.
494.
4. Habeas corp is a proper remedy to obtain the release of a
probationer who has been committed without an opportunity to be
heard. His discharge will be without prejudice to his arrest and
commitment as a result of subsequent proceedings conforming to the
statute. P.
295 U. S.
494.
5. The contention that the district judge, in revoking probation
on an
ex parte showing in this case, has plainly indicated
how his discretion will be exercised if a hearing is granted is a
non sequitur, and affords no basis for denial of a
hearing. P.
295 U. S.
494.
74 F.2d 924 reversed.
Certiorari, 294 U.S. 704, to review a judgment affirming an
order of the District Court dismissing an application for a writ of
habeas corpus.
Page 295 U. S. 491
MR. JUSTICE CARDOZO delivered the opinion of the Court.
Petitioner was convicted of a crime in the United States
District Court for the Eastern District of Texas after indictment
and a plea of guilty. He was sentenced, October 10, 1932, to
imprisonment for four and a half years in the Penitentiary at
Leavenworth, Kansas. On the same day, the sentence was suspended
for five years upon conditions of probation, and the defendant (the
petitioner in this Court) was placed in charge of the District
Probation Officer for that length of time. One of the conditions
was that the probationer would refrain from the violation of any
state or federal penal laws. Another was that he would live "a
clean, honest, and temperate life."
In July, 1933, information was conveyed to the District
Probation Officer that petitioner had broken these conditions. In a
letter written by his father, he was charged with drunkenness and
the forgery of two checks. The officer made report of this
information to the District Judge and requested a revocation of the
order for suspension of sentence. On July 29, 1933, the District
Judge issued a mandate for a warrant of arrest. On August 5, he
signed an order that the suspension be revoked and that the
defendant be committed to prison to serve the stated term. Upon
arrest under the warrant, the defendant was not brought by his
custodian before any court or judge. He was transported at once to
the penitentiary at Leavenworth, Kansas, and there imprisoned.
Later, in December, 1933, he filed a petition for a writ of habeas
corpus in the United States District Court for the District of
Kansas, contending that his imprisonment was unlawful for the
reason that probation had been ended without the opportunity for a
hearing made necessary by statute. The District Judge dismissed the
application for the writ, and the Circuit Court of Appeals for the
Tenth Circuit
Page 295 U. S. 492
affirmed his order. 74 F.2d 924. A writ of certiorari issued
from this Court..
Upon the suspension of sentence in October, 1932, the applicable
statute made provision as follows:
"At any time within the probation period, the probation officer
may arrest the probationer without a warrant, or the court may
issue a warrant for his arrest. Thereupon, such probationer shall
forthwith be taken before the court. At any time after the
probation period, but within the maximum period for which the
defendant might originally have been sentenced, the court may issue
a warrant and cause the defendant to be arrested and brought before
the court. Thereupon the court may revoke the probation or the
suspension of sentence, and may impose any sentence which might
originally have been imposed."
Act of March 4, 1925, c. 521, § 2, 43 Stat. 1260, 18 U.S.C. §
725. An amendment of the statute in June, 1933 (Act of June 16,
1933, c. 97, 48 Stat. 256, 18 U.S.C. Supp. § 725), permits the
execution of the warrant by a United States marshal as well as by a
probation officer, but does not change the procedure otherwise.
Under the statute as amended as well as in its original form, the
probationer "shall forthwith be taken before the court." This
mandate was disobeyed. The probationer, instead of being brought
before the court which had imposed the sentence, was taken to a
prison beyond the territorial limits of that court and kept there
in confinement without the opportunity for a hearing. For this
denial of a legal privilege, the commitment may not stand.
In thus holding, we do not accept the petitioner's contention
that the privilege has a basis in the Constitution, apart from any
statute. Probation or suspension of sentence comes as an act of
grace to one convicted of a crime, and may be coupled with such
conditions in respect of
Page 295 U. S. 493
its duration as Congress may impose.
Burns v. United
States, 287 U. S. 216. But
the power of the lawmakers to dispense with notice or a hearing as
part of the procedure of probation does not mean that a like
dispensing power, in opposition to the will of Congress, has been
confided to the courts. The privilege is no less real because its
source is in the statute, rather than in the Fifth Amendment. If
the statement of the Congress that the probationer shall be brought
before the court is command, and not advice, it defines and
conditions power.
French v.
Edwards, 13 Wall. 506,
80 U. S. 511.
The revocation is invalid unless the command has been obeyed.
We find in this statute more than directory words of caution,
leaving power unaffected. This is so if we consider the words
alone, putting aside for the moment the ends and aims to be
achieved. The defendant "shall" be dealt with in a stated way; it
is the language of command, a test significant, though not
controlling.
Richbourg Motor Co. v. United States,
281 U. S. 528,
281 U. S. 534.
Doubt, however, is dispelled when we pass from the words alone to a
view of ends and aims. Clearly the end and aim of an appearance
before the court must be to enable an accused probationer to
explain away the accusation. The charge against him may have been
inspired by rumor or mistake, or even downright malice. He shall
have a chance to say his say before the word of his pursuers is
received to his undoing. This does not mean that he may insist upon
a trial in any strict or formal sense.
Burns v. United States,
supra, at pp.
287 U. S.
222-223. It does mean that there shall be an inquiry so
fitted in its range to the needs of the occasion as to justify the
conclusion that discretion has not been abused by the failure of
the inquisitor to carry the probe deeper.
Burns v. United
States, supra. That much is necessary, or so the Congress must
have thought, to protect the individual against malice or
oppression.
Page 295 U. S. 494
Almost equally, it is necessary, if we read aright the thought
of Congress, for the good of the probation system, with all its
hopes of social betterment.
If these are the ends to be promoted by bringing the probationer
into the presence of his judge, the act is seen at once to be
mandatory in meaning, as well as mandatory in form. Statutes are
not directory when to put them in that category would result in
serious impairment of the public or the private interests that they
were intended to protect.
French v. Edwards, supra; Lyon v.
Alley, 130 U. S. 177,
130 U. S. 185;
Erhardt v. Schroeder, 155 U. S. 124,
155 U. S. 128,
155 U. S. 130.
Such is the situation here. When a hearing is allowed but there is
error in conducting it or in limiting its scope, the remedy is by
appeal. When an opportunity to be heard is denied altogether, the
ensuing mandate of the court is void, and the prisoner confined
thereunder may have recourse to habeas corpus to put an end to the
restraint. It is beside the point to argue, as the government does,
that, in this case, a hearing, if given, is likely to be futile
because the judge has made it plain how his discretion will be
exercised, in that already he has cancelled the suspension on the
strength of an
ex parte showing. The
non sequitur
is obvious. The judge is without the light whereby his discretion
must be guided until a hearing, however summary, has been given the
supposed offender.
Cf. Snyder Massachusetts, 291 U. S.
97,
291 U. S. 116.
Judgment ceases to be judicial if there is condemnation in advance
of trial.
We hold that the attempted revocation is invalid for defect of
power, and that, the suspension still continuing, the petitioner is
entitled to be discharged from his confinement.
The discharge is without prejudice to his arrest and commitment
as a result of subsequent proceedings conforming to the
statute.
Page 295 U. S. 495
The judgment is reversed, and the cause remanded with
instructions that the writ must be sustained and the prisoner
discharged.
Reversed.