Cardisco v. Davis

• Decision Date: 04 January 1937
• Docket Number: 5853,5854
• Citation: Cardisco v. Davis, 91 Utah 323, 64 P.2d 216 (Utah 1937)
• Court: Utah Supreme Court
• Parties: CARDISCO v. DAVIS, Warden of Utah State Prison. EDWARDS v. SAME

64 P.2d 216

91 Utah 323

CARDISCO v. DAVIS, Warden of Utah State Prison.

EDWARDS v. SAME

Nos. 5853, 5854

Supreme Court of Utah

January 4, 1937

Original proceedings by Mike Cardisco and Harry Edwards for writs of habeas corpus directed to R. E. Davis, Warden of the Utah State Prison, which were consolidated for presentation and argument, upon stipulation.

APPLICATIONS DENIED.

William L. Beezley, of Salt Lake City, for plaintiffs.

Joseph Chez, Attorney General, and Grover A. Giles, of Salt Lake City, for defendant.

MOFFAT Justice.FOLLAND, Justice, EPHRAIM HANSON, Justice concurring.ELIAS HANSEN, Chief Justice, WOLFE, Justice, concurring in the result.

OPINION

MOFFAT, Justice.

Upon petitions filed by Mike Cardisco and Harry Edwards, writs of habeas corpus were issued directing R. E. Davis, Warden of the Utah State Prison, to appear before this court with the prisoners at a time specified.The orders contained in the writs were complied with, and at the date specified the warden filed his return to each of the writs.

Upon stipulation of the partiesthe cases were consolidated for presentation and argument.Each case raises the same questions of law.For the purpose of this opinion what is said herein applies to both cases unless otherwise indicated.

Mike Cardisco alleges that he is unlawfully restrained of his liberty by the Warden of the Utah State Prison by reason of the fact that he has earned nine months' reduction of time under the "good behavior"statute(Rev. St. 1933, 67-0-10, 67-0-11), and that, when the "good conduct time" is deducted from the maximum time fixed by the trial judge under the "indeterminate sentence"statute(Rev. St. 1933, 105-36-20), his term has expired and he is entitled to his release.

Except for differences of offense charged, duration and dates of sentence and amount of good conduct time claimed to have been earned, the case of Harry Edwards is identical; that is, the same questions of law are presented.Without subdivision into elements of analysis of the legal problem, there is but one question for consideration, viz.: Has the State Board of Pardons entire control over the time a prisoner sentenced under the indeterminate sentence law shall serve under the maximum fixed by law?In another form, the question may be stated thus: Is it mandatory upon the State Board of Pardons to apply to each convict sentenced to a term less than life the "good conduct time" allowance, if the prisoner has not been guilty of a breach of any of the rules of discipline of the prison during the period of service under the sentence?This last question unfortunately contains an assumption as to the status of the so-called "good conduct time"statute not imposed by the first question.

Counsel for the Warden submits both questions as one connected by the alternative "or," while counsel for petitioners subdivide the matter into five propositions for which they contend, viz.: (1) There is no inconsistency between the indeterminate sentence statute provisions, and the good conduct time deduction statute; (2) that, without a record being kept and a forfeiture of good conduct time, petitioners are entitled to the allowance which the Warden cannot forfeit; (3) that the rule of statutory construction is as follows: "When the provisions of a statute are susceptible of two constructions, one of which gives effect to all of its provisions, and one of which does not, that construction should apply which permits all of its provisions to stand in force"; (4) that the rule of statutory construction just quoted applies to petitioners' cases; (5) that the statute providing for allowance for good behavior, or the so-called "merit system," whereby prisoners are allowed credit for "good time," is mandatory upon the Warden and the State Board of Pardons.

We are of the opinion that the State Board of Pardons has the jurisdiction and power to fix and determine the time a person shall serve when sentenced under the indeterminate sentence law at any period equal to or less than the maximum penalty provided by law.As thus stated, there is but one question for discussion.In arriving at this conclusion, we are conscious that the disciplinary and administrative policies of the Board of Corrections, the Warden of the State Prison, and the State Board of Pardons, is of the utmost importance.By the terms of the indeterminate sentence law the Legislature intended to interpret and make more effective the provisions of the State Constitution to carry forward as far as possible the constitutional powers placed in the hands of the State Board of Pardons relating to the administrative details as to the remission of fines and forfeitures, the commutation of punishments, and the granting of pardons after convictions.In territorial days the laws of Congress relating to Utah provided that the Governor "may grant pardons and reprieves, and remit fines and forfeitures, for offences against the laws of the Territory."Comp. Laws Utah 1888, vol. 1, p. 51, § 1841.Upon the adoption of the State Constitution this power was vested in the Board of Pardons, a body created by the State Constitution.Const. Utah, art. 7, § 12.Since the adoption of the State Constitution, the ideas and attitude of those concerned with prison administration as to the purposes of incarceration, the rules and disciplinary regulations, the methods for reforming prisoners, and what constitutes paying the penalties imposed after convictions have materially changed.The limitations and restrictions adopted by the Board of Pardons relating to matters of supervision, parole, and reformation of those convicted of crime have acquired an enlarged and different meaning.The ideas of "retributive justice and vindictive punishment" have been modified.Rehabilitation and reformation have acquired greater emphasis.The powers vested in the Board of Pardons have contributed to make this possible.Courts should not interfere with those upon whom these powers have been conferred nor with the discharge of the duties imposed, unless it clearly appears that they have exceeded the authority conferred.The framers of the Constitution and the people who adopted it saw fit to vest questions of judgment as to reformation, rehabilitation, and fitness to carry and discharge social responsibilities following conviction and incarceration of prisoners in the State Board of Pardons.Prison discipline is for the Warden of the State Prison and the Board of Corrections.Treatment of a prisoner is an individual problem, and should be more responsive to the particular case.Handled in such manner, the work may be more effective than can be provided by general legislative action.Each prisoner is an individual problem notwithstanding the necessity of general administrative rules.

Article 7, § 12, of the Constitution of Utah, among other things, provides:

"Until otherwise provided by law, the Governor, Justices of the Supreme Court and Attorney-General shall constitute a Board of Pardons, a majority of whom, including the Governor, upon such conditions, and with such limitations and restrictions as they deem proper, may remit fines and forfeitures, commute punishments, and grant pardons after convictions, in all cases except treason and impeachments, subject to such regulations as may be provided by law, relative to the manner of applying for pardons."

The power to parole prisoners is included within the power to "remit fines and forfeitures, commute punishments, and grant pardons."No reference is made in the Constitution of Utah to parole.The word "parole" is not found in the Constitution.

Section 67-0-7, R. S. Utah 1933, in part, reads:

"The board of pardons may permit any prisoner who is now or may hereafter be imprisoned in the state prison, or any county jail, to go on parole outside of the prison buildings and other inclosures."

And section 67-0-8, R. S. Utah 1933, relating also to the status of a parolee and the power of the board to control or retake and reimprison one on parole, provides:

"A prisoner while on parole shall remain in the legal custody and under the control of the warden, or the sheriff of the county from which the prisoner was paroled, as the case may be, and the board of pardons; and shall be subject at any time to be taken back to the institution from which he was paroled.Full power to retake and reimprison any convict upon parole is hereby conferred upon the board, whose written order, certified by its secretary, shall be a sufficient warrant for all officers authorized to make arrests, or other persons named therein, to return to actual custody any such prisoner."

The two sections of the statutes just referred to relating to parole are within the constitutional grant of power to remit fines and forfeitures, commute sentences, and pardon prisoners.Under the powers vested by the Constitution of Utah in the State Board of Pardons, the board could parole prisoners or refuse to do so and exercise the other supervisory powers over terms of imprisonment after conviction, commutation, pardon, and parole had the sections not been enacted.The procedural parts of the sections of the statute relating to the Board of Pardons are in no way repugnant to the Constitution.

It is provided by sections 67-0-10and67-0-11, R. S. Utah 1933, that:

67-0-10."The board of pardons may extend to each convict sentenced for any period less than life who shall not have been guilty of a breach of the rules of discipline of the prison a reduction of the period of sentence as hereinafter provided; and when the full term of imprisonment for which such convict shall have been sentenced shall be diminished by his good conduct so that his term of imprisonment has thereby expired,...