Ex parte United States, Petitioner. riginal

• Citation: 242 U.S. 27,37 S.Ct. 72,61 L.Ed. 129
• Decision Date: 04 December 1916
• Docket Number: No. 11,O,11
• Parties: EX PARTE UNITED STATES, Petitioner. riginal
• Court: United States Supreme Court

242 U.S. 27

37 S.Ct. 72

61 L.Ed. 129

EX PARTE UNITED STATES, Petitioner.

No. 11, Original.

Argued January 10 and 11, 1916.

Decided December 4, 1916.

Mr.John M. Killits, in propria persona, also for respondent.

[Syllabus from page 28 intentionally omitted] Attorney General Gregory, Assistant Attorney General Wallace, and Solicitor General Davis for the United States.

[Argument of Counsel from pages 29-32 intentionally omitted] Mr. Edwin J. Marshall for respondent.

[Argument of Counsel from pages 33-37 intentionally omitted] Richard W. Hale, Frank W. Grinnell, Homer Folks, and Charles L. Chute as amici curiae.

Mr. Chief Justice White delivered the opinion of the court.

The accused pleading guilty to an indictment charging him in several counts with embezzling the money of a national bank embexxling the money of a national bank of which he was an officer, and making false entries in its books, in violation of § 5209, Revised Statutes (Comp. Stat. 1913, § 9772), was sentenced to imprisonment in the penitentiary for five years, the shortest term which, under the statute, could have been imposed upon him. At once at his request, over the objection of the United States district attorney, the court ordered 'that the execution of the sentence be, and it is hereby, suspended during the good behavior of the defendant, and for the purpose of this case this term of this court is kept open for five years.' The United States moved to set this order aside on the ground that, as it was not a mere temporary suspension of the sentence to enable legal proceedings pending or contemplated to revise it to be taken, or application for pardon to be made, or any other legal relief against the sentence to be resorted to, but, on the contrary, as it was a permanent suspension based upon considerations extraneous to the legality of the conviction or the duty to enforce the sentence, the order of suspension was void, as it was equivalent to a refusal to carry out the statute. The motion was denied. In the opinion giving its reasons for so doing, the court, conceding that the suspension was permanent, stated the general considerations which it deemed it was required to take into view in decideing whether the sentence should be enforced, conceding the legality of the conviction and sentence and their finality, as follows:

'Modern notions respecting the treatment of law breakers abandon the theory that the imposition of the sentence is solely to punish, and now the best thought considers three elements properly to enter into the treatment of every criminal case after conviction. Punishment in some measure is still the object of sentence, but, affecting its extent and character, we consider the effect of the situation upon the individual, as tending to reform him from or to confirm him in a criminal career, and also the relation his case bears to the community in the effect of the disposition of it upon others of criminal tendencies.'

After pointing out the peculiar aptitude possessed by a trial judge for the appreciation of such conditions, and the imperative duty which rested upon such judge to consider and weigh the matters stated, and to determine, as an inherent attribute of judicial power, whether a permanent suspension of the term of imprisonment fixed by the statute should be ordered, the circumstances upon which it was concluded that a permanent suspension should be directed were stated in part as follows:

'We took into account the peculiar circumstances under which his crime was committed, having regard to the temptations which from time to time encompassed him, and his personal necessities, and the purposes for which his appropriations were made. Also, the fact that his friends made his employers whole, and that otherwise he had so commended himself to the favor of his employers suffering by his crime, that they at all times, as well as now, evince a disposition to forgive his abuse of their confidence, and to support him against the punishment which the law provides. We find that otherwise than for this crime, his disposition, character, and habits have so strongly com- mended him to his friends, acquaintances, and persons of his faith, that they are unanimous in the belief that the exposure and humiliation of his conviction are a sufficient punishment, and that he can be saved to the good of society if nothing further is done with him.'

After further elaborating considerations of a like nature, and stating very many circumstances confirming those mentioned, to leave no room for doubt that its action was intended to be permanent and was based alone on the extraneous circumstances stated, the court said:

'Passing now to the concrete case, we observe for the benefit of the United States that nothing exists in this case which moved the court to suspend the execution of sentence to prevent 'an abuse of the court's process, or to prevent an injustice being done to the defendant,' so far as it may be said that abstract justice required defendant to suffer for his crime. However, we considered the defendant from many standpoints to be as worthy of the benefit of the discretion to suspend the execution of his sentence as any other convict upon whom that favor has hitherto been bestowed.'

Following a written demand which was thereafter made upon the clerk to issue a commitment, which was refused by him on the ground that the sentence had been suspended, and the further refusal of the judge to direct the clerk to issue such commitment, the United States sought and obtained a rule to show cause why a mandamus should not be awarded directing the judge to vacate the order of suspension, under which the subject is now before us for consideration.

The remedial appropriateness of the writ of mandamus is at the threshold questioned, but we dispose of the subject by a mere reference to adjudged cases conclusively establishing the want of foundation for the contention. Ex parte Bradley, 7 Wall. 364, 19 L. ed. 214; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 8 L. ed. 949; Re Winn, 213 U.S 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515; Re Metropolitan Trust Co. 218 U.S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. U.S. 539, 55 L. ed. 575, 31 Sup. Ct. Rep. U.S. 539, 55 L. ed. 575, 31 Sup. Ct. Rep. 600. In addition, however, it is urged that, as the right to resort to the extraordinary remedy by mandamus must rest upon the assumption that the order of suspension was absolutely void, therefore the rule for the writ should have been directed not against the judge, but against the clerk, to compel him to issue the commitment. But we pass from its consideration, as we are of opinion that its want of merit will be completely demonstrated by the slightest appreciation of the judicial duties of the court below and the ministerial relation of the clerk of the court to the same.

The return to the rule and the statement in support of the same lucidly portray the contentions involved in the question of power to be decided, and the subject in all its aspects has been elaborately discussed, not only by the printed arguments of the parties, but, in addition, light has been thrown on the general question by an argument submitted by the New York State Probation Commission, explaining the statutory system of parol prevailing in that state, and by an able argument presented by members of the bar of the first circuit in behalf of a practice of mitigating or pretermitting, when deemed necessary, the statutory punishment for crimes, which it is declared has prevailed in the United States courts in that circuit for many years.

The argument on behalf of the respondent concedes that the order of suspension was permanent, and absolutely removed the accused from the operation of the punishment provided by the statute; and it is further conceded that a suspension of this character was the equivalent of an absolute and permanent refusal to impose, under the statute, any sentence whatever. However absolute may be the right thus asserted, it is nevertheless said it is not without limitation, since it may not be capriciously called into play. Passing the question whether this assumed restriction is not in the nature of things imaginary as the result of the scope of the authority asserted, let us come to dispose of the contention made by examining the propositions relied upon to sustain it.

They are: 1. That the right to refuse to impose a sentence fixed by statute, or to refuse to execute such a sentence when imposed, is a discretion inhering in the judicial power to try and punish violations of the criminal law. 2. That even if there be doubt on this subject as an original proposition, such doubt is dispelled as the right was recognized and frequently exerted at common law. 3. That the power claimed has also been recognized by decisions of state courts and of United States courts of original jurisdiction to such an extent that the doctrine is now to be considered as not open to controversy. 4. That whatever may be the possibility of dispute as to this last view, at least it cannot be denied that in both the state and Federal courts, over a very long period of time, the power here asserted has been exercised, often with the express, and constantly with the tacit, approval of the administrative officers of the state and Federal governments, and has been also tacitly recognized by the inaction of the legislative department during the long time the practice has prevailed, to such an extent that the authority claimed has in practice become a part of the administration of criminal law, both state and Federal, not subject to be now questioned or overthrown because of mere doubts of the theoretical accuracy of the conceptions upon which it is founded.

1. The contention as to inherent judicial power.

Indisputably under our constitutional system the right to try offenses against the criminal laws, and, upon conviction, to impose the punishment provided by law, is judicial,...