Commonwealth ex rel. Banks v. Cain

CourtUnited States State Supreme Court of Pennsylvania
Citation345 Pa. 581,28 A.2d 897
Docket Number43
PartiesCommonwealth ex rel. Banks v. Cain, Appellant
Decision Date23 November 1942

Argued September 28, 1942.

Appeal, No. 43, Jan. T., 1943, from decree of C.P. Delaware Co., June T., 1942, No. 327, in case of Commonwealth ex rel Elmer Banks v. John J. Cain, Keeper.

Habeas corpus proceeding. Before MacDADE, P.J., ERVIN and SWENEY JJ.

Order entered discharging relator on parole, opinion by MacDADE P.J. Defendant appealed.

The order and decree of the court below is reversed, and the record is remitted with directions to dismiss the writ of habeas corpus and remand the relator.

Claude T. Reno, Attorney General, with him Louis A. Bloom, Assistant District Attorney, William B. McClenachan, Jr., District Attorney, and Michael S. De Pierro, Special Deputy Attorney General, and M. Louise Rutherford, Deputy Attorney General, for appellant.

Robert W. Beatty, with him Michael S. Reps, A. Sidney Johnson, Jr., and Robert B. Greer, for appellee.




On July 26, 1940, the relator, Elmer Banks, was sentenced to the Delaware County prison for a term of not less than one nor more than two years from June 15, 1941 (which was the date of expiration of another sentence for violation of a previous parole), and to pay a fine of $100 and costs. On June 15, 1942, the court directed that he be paroled upon payment of the fine and costs, but defendant, the keeper of the prison, refused to release him because, on June 2, 1942, the Pennsylvania Board of Parole had ordered that he should be paroled on December 15, 1942. Banks obtained a writ of habeas corpus and the court, being of opinion that the Act of August 6, 1941, P.L. 861, which created the Pennsylvania Board of Parole, was unconstitutional, ordered his immediate release on parole as it had previously directed. The District Attorney of Delaware County has appealed on behalf of defendant; the Attorney General also has entered his appearance.

The act in question, which became effective on June 1, 1942, provides for the establishment of a uniform and exclusive system for the administration of parole in Pennsylvania. It creates an independent administrative board with exclusive power to parole and reparole, to commit and recommit for violations of parole, and to discharge from parole all persons theretofore or thereafter sentenced by any court in the Commonwealth to imprisonment in any penal institution of the State or of a county. The powers and duties of the board do not extend to persons sentenced for a maximum period of less than two years; as to such persons the courts retain their present powers of parole. Neither is the board given any authority over convicts condemned to death or serving life imprisonment. The board's power to parole may not be exercised in any case before the expiration of the minimum term of imprisonment fixed by the court in its sentence. The act does not apply to persons committed to houses of refuge for boys or girls, institutions for the discipline or correction of juveniles, or persons imprisoned under sentence by an alderman, justice of the peace or magistrate, or committed in default of payment of any fine or of bail.

The constitutionality of this statute is attacked on two principal grounds. The first is that it infringes upon the power of the Governor to grant commutations of sentence and pardons (Article IV, section 9). There is no novelty in this contention; it has been made many times in the courts of other states in which parole systems are administered by boards or prison managers, and has been rejected in practically all jurisdictions. [1] There is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense: Diehl v. Rodgers, 169 Pa. 316, 319, 32 A. 424, 425; Commonwealth v. Quaranta, 295 Pa. 264, 273, 145 A. 89, 93; Commonwealth v. House, 10 Pa.Super. 259, 264, 265. A parole, on the other hand, does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution. Neither is a parole a commutation of sentence within the meaning of that term in the constitutional provision. When our present constitution was adopted, parole, as a penological expedient, was unknown to American jurists and legislators, [2] and "commutation" was then generally understood as meaning a reduction in the length of the sentence, effecting a discharge of the prisoner without any further supervision over him by the state authorities. [3] The constitutional power of the Governor to grant pardons and commutations of sentence is exclusive, so that the fact that the legislature has, by various statutes, given the power of parole to the criminal courts, [4] to the board of managers of the Industrial Reformatory at Huntingdon, [5] and to the board of trustees of the State Industrial Home for Women, [6] indicates that parole has never been considered as being within the category of either pardon or commutation. The courts in other states have held that a parole is not a commutation as that term is employed in their respective constitutions. [7]

The other main attack on the constitutionality of the act is directed to its alleged violation of Article V, section 1, which provides that the judicial power of the Commonwealth shall be vested in the various courts therein named and in such other courts as the General Assembly may from time to time establish. It is urged that the granting of a parole is a judicial function and therefore the power to parole cannot be entrusted to an executive or administrative body. This contention also has been uniformly rejected in other jurisdictions, [8] where the constitutionality of statutes has been sustained vesting the power of parole in state boards (which now exist in some form or other in at least half of the states of the Union) or in boards of prison commissioners or managers of reformatories. [9] The power to grant paroles is not inherent in courts; Pennsylvania courts never had such power until it was given to them by the Act of June 19, 1911, P.L. 1059, and then only with respect to prisoners in county jails and workhouses. What the legislature thus gave it can take away again in whole or in part and vest in some other agency of government. The legislature has exclusive power to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime. It can provide for fixed penalties or grant to the courts such measure of discretion in the imposition of sentences as it may see fit. It may enact that prison confinement shall be the punishment for crime or may abolish prisons altogether and adopt some other method of enforcing the criminal law. It may therefore establish a parole system by which prisoners shall, under certain conditions, be allowed to re-enter society through a gradual amelioration of their restraint and a substitution of controlled freedom for continued incarceration. The granting of parole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the legislature to non-judicial agencies. What parole statutes give to the paroling authorities -- in the present instance to the State Board of Parole -- is in effect nothing more than the fact-finding duty of determining in each case when the conditions prescribed by the legisture for provisional release from confinement have been complied with, and that duty may properly be placed in charge of an administrative tribunal as is so commonly done in other fields of governmental administration. It was well said in State v. Page, 60 Kan. 664, 668, 57 P. 514, 516: "It is not . . . an interference with judicial authority, nor an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge's sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it it is not an assumption of judicial power for an administrative officer, acting within the law and the terms of the sentence, to take upon himself the task of ascertaining whether the conditions have been observed." While the court determines the guilt or innocence of the accused and pronounces upon the guilty the penalty provided by law, [10] the manner of executing the sentence is prescribed by the legislature, to be put in force and effect by administrative officers.

The exercise of the power of parole being but an administrative function which does not impinge upon the judicial power of sentencing the accused in conformity with the law, it follows that the present act may constitutionally be applied to cases where sentences were imposed before its effective date. The sentence is in no wise interfered with, especially since the act provides that a parole cannot be granted until the expiration of the minimum term prescribed by the court. The...

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    • United States State Supreme Court of Pennsylvania
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    ...punishment the law inflicts for a crime he has committed." Appellant relies upon a dictum contained inCommonwealth ex rel. Banks v. Cain, 345 Pa. 581, 584, 28 A.2d 897, 143 A.L.R. 1473. In that case the Court sustained the constitutionality of the Parole Act, and by way of analogy, said in ......
  • Geraghty v. U.S. Parole Commission, s. 77-1679
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    ...would not seem dispositive. E. g., Sims v. Rives, 66 U.S.App.D.C. 24, 84 F.2d 871, 879 (1936); See Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (1942); Annotation, 143 A.L.R. 1726 (1942). Cf. Dreyer v. Illinois, 187 U.S. 71, 78-84, 23 S.Ct. 28, 47 L.Ed. 79 (......
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    • March 26, 2009, he is thereafter as innocent as if he had never committed the offense." Id. at 282, 352 P.2d at 829 (quoting Commonwealth v. Cain, 345 Pa. 581, 28 A.2d 897, 899 (1942)). Accordingly, we concluded that NRS 200.030 was not unconstitutional because the Legislature had the power to establi......
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    ...this state prevents a usurpation of judicial power in these cases was addressed and answered by this Court in Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). There, in a learned opinion by Mr. Justice (later Chief Justice) Stern, it was noted that although the General A......
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