Fredericks, Application of

• Decision Date: 18 September 1957
• Parties: Matter of the Application of George FREDERICKS for a Writ of Habeas Corpus. George FREDERICKS, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 1010

315 P.2d 1010

211 Or. 312

Matter of the Application of George FREDERICKS for a Writ of

Habeas Corpus.

George FREDERICKS, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State

Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Rehearing June 20, 1957.

Decided Sept. 18, 1957.

Merlin Estep, Jr., Salem, argued the cause for appellant. On the brief were Williams & Skopil and Hewitt, Estep & Sorensen, Salem.

Peter S. Herman, Asst. Atty. Gen. for Oregon, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen. for Oregon.

BRAND, Justice.

The first opinion of this court was handed down on March 13, 1957, 308 P.2d 613, 615. That opinion held that the plaintiff, George Fredericks, was prematurely released from the penitentiary by reason of an incorrect computation of the amount of 'Good Time' to which he was entitled. ORS 421.120(1)(b). We agree. The court then considered whether or not the plaintiff received his discharge from imprisonment by the exercise of the constitutional power of the governor to grant pardons and commutations or whether the discharge was solely pursuant to the provisions of ORS 421.120 not involving the pardon power of the governor. The court arrived at the conclusion that the result of the statute was 'to vest in the governor a dual authority to release prisoners, one, by virtue of the constitution, and the other, by virtue of the above statute.' The opinion held that the plaintiff was not released as a result of any act performed by the governor pursuant to his constitutional authority. Again, we agree. In substance, the court held that the defendant was unlawfully released but that the warden had no authority to arrest the plaintiff and return him to the penitentiary to complete the service of his sentence. With this portion of the decision we disagree, as will later appear. From this decision a petition for rehearing was granted. The case was again argued and is now before us for further consideration. It has been suggested that we erred in failing to hold that the plaintiff was released by act of the governor in the exercise of his constitutional power to grant pardons. It is argued that the governor was vested with the complete constitutional power to commute sentences and that ORS 421.120 neither enlarged that power nor vested in the governor any additional overlapping or duplicate power. It is further argued that the plaintiff was finally and unconditionally released by the exercise of the governor's pardoning power which includes the power of commutation. The consequence of this theory, if adopted, would be to reject our earlier conclusion which was to the effect that the error in the premature release of the prisoner could be rectified by action of the governor or through invoking the power of the courts. If the governor in the exercise of his pardoning power, released the plaintiff, that would of course end the matter.

It has been thought necessary to consider the validity of good conduct statutes. All are agreed that such statutes are valid when they are not retrospective in effect and are of general application. It is said that good conduct statutes have been held invalid in some cases when they were challenged on the ground that they were being applied retroactively. But that question is not before us in this case. The 1937 law, Chapter 268 (now ORS 421.120(1)(b)), for the first time provided a true 'Good Time' statute, one which provided that, on the making of the required certificate and recommendation by the warden, the prisoner shall be entitled to a deduction from the term of his sentence, as follows: '(b) Upon a sentence of more than one year, 10 days for each month of actual service of such sentence in the penitentiary.' That precise provision was in effect when the defendant was sentenced on 27 November 1945 and when the warden made his certificate and recommendation to the governor wherein he stated that 'In compliance with the Provisions of Chapter 505, Oregon Laws 1955 (ORS 421.120 Revised), I hereby certify that the inmates listed below are entitled to 'Good Time' credits as scheduled * * *.' Then follows the name of George Fredericks, 'Sentence 15 years', 'Statutory Good Time 4 yrs. 11 mos. 29 days.' The section of statute to which the warden referred was a reenactment of the earlier provisions of Chapter 268, Laws of 1937. The application of that act to the case of the plaintiff could not be retroactive because it was enacted in 1937 and the defendant was not sentenced until 27 November 1945. It is true that statutes were enacted in 1953 and in 1955 which provided other and additional good time allowances, and if the warden had based his recommendation upon those provisions the question of retroactivity would have been involved. But the certificate signed by the warden and addressed to Governor Patterson shows that he was awarded 'statutory' good time of 4 years, 11 months and 29 days. Following the columns headed 'Statutory Good Time' are columns entitled 'Industrial Good Time', 'Annex Good Time', 'Forest Camp Good Time', and 'Parole Good Time Restored'. Under each of these columns and opposite the name of the plaintiff there is a blank, indicating clearly that no credit for good time was allowed him except credit for 'Statutory Good Time'. As stated in the first opinion of this court 'plaintiff was not given good time credits in any of those columns'. It will be recalled that defendant received a 15-year sentence which he began serving on 29 November 1945 and that he was released on 29 November 1955.

This demonstrates that the credit he received was exactly one-third of the full time of his sentence, which was in accordance with the erroneous interpretation which had prevailed as to the proper effect of Chapter 268, Laws of 1937 (now ORS 421.120(1)(b). It cannot be argued that he received credit for good time on any other basis and, as the court said in its first opinion, the plaintiff was released 15 months too early under the 1937 statute properly construed. The conclusion which must be drawn is that plaintiff was released under an erroneous construction of the provisions of the 1937 act which operated on his case prospectively. The 1953 and 1955 provisions for additional good time credits were not involved in any way and no question of retroactivity is in this case.

We will now consider the analogy of statutes providing for parole of prisoners. Such statutes do not involve any exercise of the pardon power of the governor even when the power of parole is vested in that official. In Anderson v. Alexander (191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051) we upheld and enforced the provisions of our parole law which vests in the parole board the power to parole prisoners without any participation by the governor. To hold that such a parole is an exercise of the pardon power and therefore unconstitutional would be unthinkable and contrary to a multitude of decisions including the Anderson case. A hasty examination of the statutes of various states shows that the power of parole has been vested in parole boards without any participation by the executive in the federal system, 18 U.S.C.A. §§ 4201-4207, and by statute in many states, including California (Cal.Pen.Code, §§ 3000-3200); Illinois (Smith-Hurd Ill.Stat. ch. 127, § 55b); Michigan (Mich.Stat.Ann. 28.2301-28.2315 [Comp.Laws Supp.1956, §§ 791.231, 791.245]); New Jersey (N.J.Stat.Ann. 30:4-123.1-123.44); New York (N.Y.Correction Law, McK.Consol.Laws, c. 43, § 210); Pennsylvania (61 Purdon's Pa.Stat. § 331.17); Washington (Rev.Code of Wash. 9.95).

Turning to the much discussed case of Fehl v. Martin, 155 Or. 455, 64 P.2d 631, 632, we find that the case arose under Oregon Code, § 13-1906 (1930). That statute as construed gave the governor power to parole prisoners but only under conditions specified in the act. It was held that the act was not a 'good time' act authorizing the termination of imprisonment as in the case of a pardon but only purported to control the exercise of the power of the governor to parole. The distinction between the two types of statute is clear. In Anderson v. Alexander, supra, we pointed out that a parole does not obliterate the crime or forgive the offender. It is not an act of clemency. Parolees remain in constructive custody and under guidance. A pardon, on the contrary, is the exercise of the sovereign prerogative of mercy. It completely frees the offender from the control of the state. It was assumed in the first opinion in Fehl v. Martin that a parole was a conditional pardon. If that assumption was correct, then the conditions imposed by O.C. § 13-1906 (1930) would have been unconstitutional. What the court said was merely that 'no act of the Legislature could take away from the Governor the power to grant an absolute or a conditional pardon' which of course is true, but the court did not directly hold O.C. § 13-1906 (1930) unconstitutional and the opinion of Justice Bailey clearly points out that the question as to whether the parole statute was in contravention of Article V of the Oregon Constitution which confers upon the governor exclusive authority to grant reprieves, commutations and pardons was 'not involved in this appeal.'

In the light of the rulings in Anderson v. Alexander it is clear that a parole statute cannot be an exercise of the pardon power. Under O.C. § 13-1906 (1930) it was an additional authority vested in the governor which enlarged the prison confines but did not end the imprisonment or the sentence or shorten the term thereof. Through a long series of acts the power of the governor to parole prisoners was granted and restricted with no thought of limiting or affecting his constitutional powers of pardon. See Laws 1905, Ch. 187; Laws 1911, Ch. 127; Laws 1917, Ch. 302; Laws 1919, Ch. 150; Laws 1920, Special Session, Ch. 8, Laws 1921, Ch. 110. The...