304 U.S. 359 (1938), 782, Zerbst v. Kidwell

Docket NºNo. 782
Citation304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399
Party NameZerbst v. Kidwell
Case DateMay 16, 1938
CourtUnited States Supreme Court

Page 359

304 U.S. 359 (1938)

58 S.Ct. 872, 82 L.Ed. 1399

Zerbst

v.

Kidwell

No. 782

United States Supreme Court

May 16, 1938

Argued April 27, 1938

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

A prisoner sentenced to a federal penal institution for an offense committed while he was on parole from such an institution may be required by the Parole Board to serve the unexpired portion of his first sentence after the expiration of his second sentence. P. 363.

92 F.2d 756 reversed.

Page 360

Certiorari, 303 U.S. 632, to review judgments affirming orders of the District Court discharging prisoners from custody, in habeas corpus proceedings.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

Respondents were paroled before completing sentences in federal prisons.1 Before expiration of their sentences and while on parole, they committed second [58 S.Ct. 873] federal offenses, for which they were convicted, sentenced, and thereafter completely served sentences in the Atlanta Penitentiary. Respondents contend that, from the moment of their imprisonment in the penitentiary under the second sentences, they also began service of the unexpired part of their original sentences. If this contention is correct, respondents have also completely served the unexpired parts of the first sentences.

Petitioner contends, however, that, when respondents violated their paroles by committing the second federal crimes, they were no longer in custody under the first sentences; service of the first sentences was interrupted and suspended, and was not resumed before completion of service of the second sentences, and that, after completion of the second sentences, the Board of Parole has authority to require completion of the first sentences, service of which ceased due to the interruption by parole violations.

Page 361

After completion of service of the second sentences, respondents were held in custody by the warden of the penitentiary under warrants of a member of the Board of Parole alleging violations of parole. The District Court, believing the first sentences "began to run again the moment . . . [respondents were] received at the Penitentiary," discharged respondents from custody on habeas corpus proceedings.2 The Court of Appeals affirmed.3 Due to the importance of the question involved, we granted certiorari.4

When respondent committed a federal crime while on parole, for which he was arrested, convicted, sentenced, and imprisoned, not only was his parole violated, but service of his original sentence was interrupted and suspended. Thereafter, his imprisonment was attributable to his second sentence only, and his rights and status as to his first sentence were "analogous to those of an escaped convict."5 Not only had he, by his own conduct,forfeited the privileges granted him by parole, but, since he was no longer in either actual or constructive custody under his first sentence, service under the second sentence cannot be credited to the first without doing violence to the plain intent and purpose of the statutes providing for a parole system.

The Parole Board and its members have been granted sole authority to issue a warrant for the arrest and return to custody of a prisoner who violates his parole.6 A member of the Board ordered that respondent be taken into custody after completion of the second sentence.

Page 362

Until completion of the second sentence, and before the warrant was served, respondent was imprisoned only by virtue of the second sentence. There is therefore no question as to concurrent service of sentences, unless, as respondent contends, § 723c required that the unexpired part of respondent's first sentence begins when he was imprisoned under the second sentence. That section provides:

. . . The Board of Parole . . . or any member thereof, shall have the exclusive authority to issue warrants for the retaking of any United States prisoner who has violated his parole. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the...

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220 practice notes
  • 228 F.Supp. 329 (S.D.N.Y. 1964), United States v. Gernie
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 8, 1964
    ...1938). The reasoning of these cases stems from Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923), and Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). The Anderson case held that, where a warrant for violation of parole was timely issued within the perio......
  • 260 F.Supp. 313 (S.D.N.Y. 1966), 66 Civ. 2380, United States ex rel. Callens v. Buono
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 1966
    ...266 F.2d 530, 533-534 (9th Cir. 1959). [7] See 18 U.S.C. §§ 4205, 4206, 4207, 4164, construed by the Supreme Court in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923); and see Doherty v. United States, 28......
  • 323 F.2d 311 (D.C. Cir. 1963), 17776, Bates v. Rivers
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • August 15, 1963
    ...L.Ed. 1285; Taylor v. Squier, 142 F.2d 737 (9th Cir., 1942), cert. denied, 323 U.S. 755, 65 S.Ct. 82, 89 L.Ed. 604. See Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Hammerer v. Huff, 71 App.D.C. 246, 110 F.2d 113 (1939); Johnson v. Wilkinson, 279 F.2d 683 (5th Cir., ......
  • 577 F.2d 1073 (6th Cir. 1978), 77-1194, Weatherington v. Moore
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (6th Circuit)
    • June 6, 1978
    ...panel majority also cited and relied upon Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923), and Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1937). Neither of the cases considered any constitutional challenge. Both cases were primarily concerned with ......
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215 cases
  • 228 F.Supp. 329 (S.D.N.Y. 1964), United States v. Gernie
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 8, 1964
    ...1938). The reasoning of these cases stems from Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923), and Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). The Anderson case held that, where a warrant for violation of parole was timely issued within the perio......
  • 260 F.Supp. 313 (S.D.N.Y. 1966), 66 Civ. 2380, United States ex rel. Callens v. Buono
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 1966
    ...266 F.2d 530, 533-534 (9th Cir. 1959). [7] See 18 U.S.C. §§ 4205, 4206, 4207, 4164, construed by the Supreme Court in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923); and see Doherty v. United States, 28......
  • 323 F.2d 311 (D.C. Cir. 1963), 17776, Bates v. Rivers
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • August 15, 1963
    ...L.Ed. 1285; Taylor v. Squier, 142 F.2d 737 (9th Cir., 1942), cert. denied, 323 U.S. 755, 65 S.Ct. 82, 89 L.Ed. 604. See Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Hammerer v. Huff, 71 App.D.C. 246, 110 F.2d 113 (1939); Johnson v. Wilkinson, 279 F.2d 683 (5th Cir., ......
  • 577 F.2d 1073 (6th Cir. 1978), 77-1194, Weatherington v. Moore
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (6th Circuit)
    • June 6, 1978
    ...panel majority also cited and relied upon Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923), and Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1937). Neither of the cases considered any constitutional challenge. Both cases were primarily concerned with ......
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5 books & journal articles
  • Parole: corpse or phoenix?
    • United States
    • American Criminal Law Review Vol. 50 Nbr. 2, March 2013
    • March 22, 2013
    ...in American History 162 (1993); Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry 61 (2003). (14.) Zerbst v. Kidwell, 304 U.S. 359, 363 (1938) (footnote omitted). Options similar to parole included "good time" credit (viz., a reduction in the length of incarce......
  • Delegational delusions: why judges should be able to delegate reasonable authority over stated supervised release conditions.
    • United States
    • Fordham Urban Law Journal Vol. 38 Nbr. 3, March 2011
    • March 1, 2011
    ...of June 25, 1910, ch. 387, 36 Stat. 819 (creating parole boards at each United States federal penitentiary) (repealed); Zerbst v. Kidwell, 304 U.S. 359, 363 (1938) ("Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate ......
  • Lost fidelities.
    • United States
    • William and Mary Law Review Vol. 41 Nbr. 1, December 1999
    • December 1, 1999
    ...substantial support." Pratt, 85 F.2d at 179. In NLRB v. Mackay Radio & Telegraph Co., 87 F.2d 611 (9th Cir. 1937), rev'd, 304 U.S. 360 (1938), a divided court denied a petition for enforcement of an NLRB order against the company. See id. at 631. Hoover appointee Curtis Dwight Wilb......
  • Kimbrough, Spears, and categorical rejection: the latest additions to the family of federal sentencing policy cases.
    • United States
    • Washington University Law Review Vol. 88 Nbr. 2, January 2011
    • January 1, 2011
    ...1120 (2008). (11.) Nancy Gertner, Supporting Advisory Guidelines, 3 HARV. L. & POL'Y REV. 261, 263 (2009); see also Zerbst v. Kidwell, 304 U.S. 359, 363 (1938). (12.) See Mistretta v. United States, 488 U.S. 361, 363 (1989). (13.) Mistretta explained: This [indeterminate sentencing regi......
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