Escoe v. Zerbst

• Decision Date: 20 May 1935
• Docket Number: No. 773,773
• Citation: 295 U.S. 490,55 S.Ct. 818,79 L.Ed. 1566
• Parties: ESCOE v. ZERBST, Warden
• Court: U.S. Supreme Court

295 U.S. 490

55 S.Ct. 818

79 L.Ed. 1566

ESCOE

v ZERBST, Warden.

No. 773.

Argued and Submitted May 6, 1935.

Decided May 20, 1935.

Mr. Seth W. Richardson, of Washington, D.C., for petitioner.

The Attorney General and Mr. Sanford Bates, of Washington, D.C., for respondent.

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 affirmed his order. 74 F.(2d) 924. A writ of certiorari issued from this court. 294 U.S. 704, 55 S.Ct. 640, 79 L.Ed. —-.

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 (18 USCA § 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 (18 USCA § 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 takn 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 its duration as Congress may impose. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266. 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, 511, 20 L.Ed. 702. The revocation is invalid unless the command has been obeyed.

We find in this statute more than directory words of caution,...