Bradley v. United States 8212 1304, No. 71

CourtUnited States Supreme Court
Writing for the CourtMARSHALL
Citation93 S.Ct. 1151,35 L.Ed.2d 528,410 U.S. 605
Decision Date05 March 1973
Docket NumberNo. 71
PartiesCharles B. BRADLEY, Jr., et al., Petitioners, v. UNITED STATES. —1304

410 U.S. 605
93 S.Ct. 1151
35 L.Ed.2d 528
Charles B. BRADLEY, Jr., et al., Petitioners,

v.

UNITED STATES.

No. 71—1304.
Argued Jan. 8, 1973.
Decided March 5, 1973.

Syllabus

On May 6, 1971, petitioners were convicted and sentenced for narcotics offenses committed in March 1971. They received the minimum five-year sentences under a provision that was mandatory and made the sentences not subject to suspension, probation, or parole. Effective May 1, 1971, that provision was repealed and liberalized by the Comprehensive Drug Abuse Prevention and Control Act of 1970. On petitioners' motion for vacation of their sentences and remand for resentencing, the Court of Appeals held that the new provisions were unavailable in view of the Act's saving clause, which made them inapplicable to 'prosecutions' antedating the Act's effective date. Held:

1. The word 'prosecutions' in the saving clause is to be accorded its normal legal sense, under which sentencing is a part of the concept of prosecution. therefore, the saving clause barred the District Judge from suspending sentence or placing petitioners on probation. Pp. 607—610.

2. Under the saving clause, parole under 18 U.S.C. § 4208(a) is likewise unavailable to petitioners, since by its terms that provision is inapplicable to offenses for which a mandatory penalty is provided; and, in any event, a decision to grant early parole under that provision must be made '(u)pon entering a judgment of conviction,' which occurs before the end of the prosecution. Pp. 610—611.

455 F.2d 1181, affirmed.

William P. Homans, Jr., Boston, Mass., for petitioners.

Page 606

Philip A. Lacovara, Deputy Sol. Gen., Dept. of Justice, Washington, D.C., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

In this case we must decide whether a District Judge may impose a sentence of less than five years, suspend the sentence, place the offender on probation, or specify that he be eligible for parole, where the offender was convicted of a federal narcotics offense that was committed before May 1, 1971, but where he was sentenced after that date. Petitioners were convicted of conspiring to violate 26 U.S.C. § 4705(a) (1964 ed.) by selling cocaine not in pursuance of a written order form, in violation of 26 U.S.C. § 7237(b) (1964 ed. and Supp. V). The conspiracy occurred in March 1971. At that time, persons convicted of such violations were subject to a mandatory minimum sentence of five years. The sentence could not be suspended, nor could probation be granted, and parole pursuant to 18 U.S.C. § 4202 was unavailable. 26 U.S.C. § 7237(d) (1964 ed.). These provisions were repealed by §§ 1101(b)(3)(A) and (b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of that Act was May 1, 1971, five days before petitioners were convicted.

Each petitioner was sentenced to a five-year term.1 On appeal to the Court of Appeals for the First Circuit,

Page 607

various points, not here relevant, were raised. Following affirmance of their convictions, petitioners moved that their sentences be vacated and their cases be remanded to the District Court for resentencing pursuant to Fed.Rule Crim.Proc. 35. In their motion they contended that the District Court should have considered 'certain sentencing alternatives, including probation, suspension of sentence and parole' which became available on May 1, 1971. The Court of Appeals considered this motion as an 'appendage' to the appeal. It held that the specific saving clause of the 1970 Act, § 1103(a), read against the background of the general saving provision, 1 U.S.C. § 109, required that 'narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense,' and that 'under the mandate of § 109 the repealed statute, § 7237(d) is '(to) be treated as still remaining in force." 455 F.2d 1181, 1190, 1191. Accordingly, the Court of Appeals held that the trial judge lacked power to impose a lesser sentence.

We granted the petition for writ of certiorari, 407 U.S. 908, 92 S.Ct. 2438, 32 L.Ed.2d 682 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F.2d 103 (CA9 1971).2

I

At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. See Bell v. Maryland, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964); Norris v. Crocker, 13 How. 429, 14 L.Ed. 210 (1852). Abatement by repeal included a statute's repeal and re-enactment with different

Page 608

penalties. See 1 J. Sutherland, Statutes and Statutory Construction § 2031 n. 2 (3d ed. 1943). And the rule applied even when the penalty was reduced. See, e.g., The King v. M'Kenzie, 168 Eng.Rep. 881 (Cr.Cas.1820); Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See generally Note, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121—130 (1972).

Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:

'Prosecutions for any violation of law occurring prior to the effective date of (the Act) shall not be affected by the repeals or amendments made by (it) . . . or abated by reason thereof.'

Petitioners contend that the word 'prosecutions' in § 1103(a) must be given its everyday meaning. When people speak of prosecutions, they usually mean a proceeding that is under way in which guilt is to be determined. In ordinary usage, sentencing is not part of the prosecution, but occurs after the prosecution has concluded. In providing that '(p)rosecutions . . . shall not be affected,' § 1103(a) means only that a defendant may be found guilty of an offense which occurred before May 1, 1971. The repeal of the statute creating the offense does not, on this narrow interpretation of § 1103 prevent a finding of guilt. But § 1103(a) does nothing more, according to petitioners.

Although petitioners' argument has some force, we believe that their position is not consistent with Con-

Page 609

gress' intent. Rather than using terms in their everyday sense, '(t)he law uses familiar legal expressions in their familiar legal sense.' Henry v. United States, 251 U.S. 393, 395, 40 S.Ct. 185, 186, 64 L.Ed. 322 (1920). The term 'prosecution' clearly imports a beginning and an end. Cf. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), this Court said, 'Final judgment in a criminal case means sentence. The sentence is the...

To continue reading

Request your trial
215 practice notes
  • U.S. v. Ray, Docket No. 08-2795-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 27, 2009
    ...Court's observation in Bradley v. United States that "[i]n the legal sense, a prosecution terminates only when sentence is imposed." 410 U.S. 605, 609, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) (emphasis added); see Appellant's Br. 28. We have no quarrel with the proposition that a "prosecution"......
  • People v. Superior Court (Reilly)
    • United States
    • California Court of Appeals
    • November 17, 1975
    ...139, 491 P.2d 1115.) In United States v. Bradley (1st Cir. 1972) 455 F.2d 1181 (aff'd. on other issues Bradley v. United States (1973) 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528), the defendant as he was being placed under arrest in one room of an apartment, threw a flight bag, which the o......
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...Court gave powerful support, albeit indirectly, for the Second Circuit's application of § 109 in Ross. In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Court addressed the specific savings clause in the Comprehensive Drug Abuse Prevention and Control Act ......
  • United States v. Richardson, Nos. 17-2157/2183
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 27, 2020
    ...yet been imposed before that time—to determine whether section 403 applies to Richardson.2 We also note that Bradley v. United States , 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), which Richardson also cites, provides no support. In Bradley , the Court remarked that "[a]t common law......
  • Request a trial to view additional results
215 cases
  • U.S. v. Ray, Docket No. 08-2795-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 27, 2009
    ...Court's observation in Bradley v. United States that "[i]n the legal sense, a prosecution terminates only when sentence is imposed." 410 U.S. 605, 609, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) (emphasis added); see Appellant's Br. 28. We have no quarrel with the proposition that a "prosecution"......
  • People v. Superior Court (Reilly)
    • United States
    • California Court of Appeals
    • November 17, 1975
    ...139, 491 P.2d 1115.) In United States v. Bradley (1st Cir. 1972) 455 F.2d 1181 (aff'd. on other issues Bradley v. United States (1973) 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528), the defendant as he was being placed under arrest in one room of an apartment, threw a flight bag, which the o......
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...Court gave powerful support, albeit indirectly, for the Second Circuit's application of § 109 in Ross. In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Court addressed the specific savings clause in the Comprehensive Drug Abuse Prevention and Control Act ......
  • United States v. Richardson, Nos. 17-2157/2183
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 27, 2020
    ...yet been imposed before that time—to determine whether section 403 applies to Richardson.2 We also note that Bradley v. United States , 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), which Richardson also cites, provides no support. In Bradley , the Court remarked that "[a]t common law......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT