Jones v. Clemmer

EDGERTON, Associate Justice. This appeal is from an order dismissing a petition for habeas corpus. In 1937 appellant received concurrent sentences for uttering and false pretenses, and began serving them at the District of Columbia Reformatory at Lorton, Virginia. He was released on parole on December 23, 1938. On June 22, 1939 a warrant was issued for his arrest for violation of parole but was not served because he could not be found. August 4, 1943 he was committed to jail on new charges of forgery and uttering. He was afterwards convicted, and on October 15, 1943 received new concurrent sentences. He was returned to the reformatory at Lor-ton to serve these new sentences. On February 4, 1946 he had served out the new sentences, less commutation for good behavior, and was “conditionally released.” February 5, 1946 he was arrested under the 1939 warrant as a violator of parole trader [853] his original sentences. February 19, 1946 that parole was revoked, and he was recommitted to serve the remainder of his original sentences. His principal contentions are (1) that since he complied with the terms of parole for six months, so much should be credited on the remainder of his original sentences, and (2) that since the statute, D. C.Code (1940) § 24 — 206, provided that the unexpired term of a parole violator shall “begin to run from the date he is returned to the institution,” his original sentences ran concurrently with his later sentences and therefore have been fully served.1 The first contention is answered by statutory language in effect when appellant was first sentenced and substantially unchanged. It provides that “the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced.” 2 Applying identical language in the Federal Parole Act, 18 U.S.C.A. § 719, the Supreme Court has held that a parole violator may be required “to serve the remainder of the sentence originally imposed without any allowance for the time he was out on parole.”3 Appellant’s second contention is answered by Zerbst, Warden v. Kidwell, 304 U.S. 359, 362, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808. Construing language of the Federal Parole Act substantially the same as that on which appellant relies, the Court said: “Obviously, this' provision does not require that a parole violator’s original, unexpired sentence shall begin to run from the date he is imprisoned for a new and separate offense. It can only refer to reimprisonment on the original sentence under order of the Parole Board.” It is immaterial that the Parole Board did not serve the warrant as soon as it might, and did not give appellant a hearing at its next meeting after the warrant had been issued and appellant had been arrested on new charges, but did these things only on the expiration of his new sentences.4 Appellant contends that by virtue of statutory language in effect when he was sentenced,5 and afterwards modified,6 he earned commutation of his sentences by good conduct during as well as before the first six months of his parole. We need not pass upon this contention. It is immaterial, because any right to commutation which appellant may have earned at any time before he was recommitted to the reformatory was conditional and was forfeited by his violation of parole.7 There is no error. But “we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the [District] court may be free to act.” 8 Appellant is not represented by counsel. At the request and to the great assistance [854] of this court, Mr. Roger Robb has acted as amicus curiae. He calls our attention to the fact that after this appeal had been heard, and on July 17, 1947 Congress passed “An Act to reorganize the system of parole of prisoners convicted in the District of Columbia.” 9 Section 5 of this Act amends D.C.Code (1940) § 24 — 206 to read as follows: “When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. The Board may then, or at any time in its discretion, terminate the parole or modify the terms and conditions thereof. If the order of parole shall be revoked, the prisoner, unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after his return to custody. For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence. The time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.” (Italics supplied.) Until this amendment, the law did not permit a prisoner whose parole had been revoked to earn any commutation of the remainder of his sentence. By the amendment, as the House Committee on the District of Columbia said in its Report on the bill, “Provision is * * * made for a more just and orderly method of applying good-time credits when parole has been revoked.” 10 A letter of approval from the Commissioners of the District of Columbia, made a part of the Report, states: “The third important change [made by the bill] is that a prisoner whose parole is revoked may earn good time upon the balance of his sentence. Under present law, no good-time deduction is allowed such a prisoner, and, therefore, he has no incentive to obey the rules and regulations of the institution in which he is-confined.” We do not think Congress intended to deal more justly only with prisoners-whose parole might afterwards be revoked- and to discriminate against those whose parole had already been revoked. The amendment is remedial and should be construed: liberally. So construed it applies to “the-remainder of the sentence[s] originally imposed” upon appellant which was still to be served when he was returned to custody under those sentences. It is grammatically capable of this application.11 The correctness of this construction of the amendment is fairly apparent when the amendment is-read in the light of the basic good-conduct legislation which it modifies and extends. This basic legislation provides that: "Each prisoner who has been or shall hereafter be convicted of any offense against the laws of the United States, and is confined, in execution of the judgment or sentence * * * whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his-sentence to be estimated as follows, commencing on the first day of his arrival at the penitentiary, prison, or jail: Upon a-sentence of not less than six months nor more than one year, five days for each month,” etc.12 This basic legislation plainly conferred retrospectively upon prisoners, whose “arrival at the penitentiary” had al [855] ready occurred the same benefit which it conferred prospectively upon other prisoners. It made commutation not only an incentive to future good conduct but also a reward for past good conduct. We find no sufficient evidence that Congress changed its position in this respect and intended the recent amendment to furnish only an incentive. “It is clear that 'all acts in pari materia are to be taken together, as if they were one law.' ”13 Our conclusion that the amendment has full retrospective as well as prospective effect is confirmed by the fact that both the United States Attorney and the amicus curiae agree with it. Moreover the only possible alternative conclusion would be that the amendment did not apply at all, either as reward or as incentive, to prisoners whose parole had already been revoked. The statutory words “If the order of parole shall be revoked,” etc., either include or exclude past revocations: we cannot have it both ways, either in this case alone or in ■this case and a future one. Whether or not the facts of this case excuse us from presently ruling on the point, it is too clear for argument that either (1) a prisoner whose parole has already been revoked is ■entitled to commutation for good conduct from the beginning of his reimprisonment, or else (2) such a prisoner cannot earn •commutation by future good conduct. The second alternative would make the new law less just than the old, in disregard of the •plain intention of Congress to make it more •just. The old law discriminated between men who had violated parole and men who '•had not. That discrimination had at least ■some appearance of fairness. But if the amendment were interpreted as not applying to men whose parole had already been revoked, it would be made to discriminate between some parole violators • and other parole violators, allowing some to earn commutation by good conduct and others not, on the purely arbitrary basis of the time when revocation of their parole had happened to occur. The case is therefore remanded to the Distiict Court for further proceedings. If •computations which have been made are correct, and if appellant’s conduct since he was recommitted to serve the remainder of his sentences has been good, he is now entitled to be discharged from the reformatory. Footnotes [1] He also infers from 47 Stat. 698, § 5, amended 54 Stat. 243, § 4, and D.C.Code (1940) § 24—205, time the warrant for his arrest as a parole violator should have been served as soon as he was re-arrested and committed to jail. [2] 47 Stat. 698, § 6, 54 Stat. 243, § 5, D.C.Code (1940) § 24—206. [3] Anderson v. Corall, 263 U.S. 193, 197, 44 S.Ct. 43,45, 68 L.Ed. 247. [4] Hammerer v. Huff, 71 App.D.C. 246, 110 F.2d 113. Although the Supreme Court did not think this point worth mentioning, it is dear from Kidwell v. Zerbst, D.C., 19 E.Supp. 475, and Zerbst v. Kid-well, 5 Cir., 92 F.2d 756, 759, that it was involved in Zerbst, Warden v. Kidwell, 304 U.S. 359, 58 S.Ct 872, 82 L.Ed. 1389, 116 A.L.R. 808. [5] 47 Star. 697, C. 492. Sec. 4, D.C.Code 1940, § 24—204. [6] 54 Stat. 243. [7] Zerbst, Warden v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808 (“Some were released with credit for good conduct * * Footnote 1, at page 360 of 304 U.S., at page 872 of 58 S.Ct., 82 L.Ed. 1399, 116 A.L.R. 808); Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, certiorari denied 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377; United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468, certiorari denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405; Sanford, Warden v. Runyon, 5 Cir., 136 F.2d 54; Taylor v. Squier, 9 Cir., 142 F.2d 737, certiorari denied 323 U.S. 755, 65 S.Ct. 82, 89 L.Ed. 604. [8] Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082. Ameri [854] ean Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 60 L.Ed. 189, 27 A.L.R. 360; Busey v. District of Columbia, 319 U.S. 579, 63 S. Ct. 1277, 87 L.Ed. 1598. [9] Pub.L.No.198, Ch. 263, 80th Cong., 1st Sess., 61 Stat. 379. [10] H.R.Rep. No. 451, 80th Cong., 1st Sess. [11] The meaning of “shall be revoked” is not necessarily limited to “shall become revoked.” The participle “revoked,” like other participles, may be an adjective as well as a verb. Even as a matter of strict grammatical analysis, therefore, the phrase “If the order of parole shall be revoked,” which introduces the new provision for commutation, may include the meaning “If the order of parole shall be a revoked order.” Appellant’s order of parole is a revoked order. [12] Criminal Code, U.S.C.A. Title 18, § 710. Emphasis supplied. Cf. Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, certiorari denied 305 U.S. 595, 59 S.Ct. 71,. 83 L.Ed. 377. [13] United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct. 102,105, 85 L.Ed. 40.