Leach v. United States, 18198.

• Decision Date: 19 May 1964
• Docket Number: No. 18198.,18198.
• Citation: 334 F.2d 945,118 US App. DC 197
• Parties: William R. LEACH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 197, 334 F.2d 945 (1964)

William R. LEACH, Appellant, v. UNITED STATES of America, Appellee.

No. 18198.

United States Court of Appeals District of Columbia Circuit.

April 9, 1964.

As Amended May 11 and 19, 1964.

Messrs. Max M. Kampelman and Arnold H. Leibowitz, Washington, D. C. (both appointed by the District Court), were on the motion for appellant.

Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Robert D. Devlin, Asst. U. S. Attys., were on the opposition to appellant's motion.

Before BAZELON, Chief Judge, and BASTIAN and WRIGHT, Circuit Judges.

BAZELON, Chief Judge.

When William Leach appeared for sentencing after his conviction for robbery, he asked the judge to refer him for a mental examination. The prisoner said he had twice been under psychiatric care. His lawyer told the court that in the last 31 years, Leach's entire adult life, he had been out of prison only 63 days. The pre-sentence report characterized Leach as "the classical picture of the psychopathic offender." Yet the judge ignored his request for an examination. Alleging this and other errors, Leach appealed. This court held the other errors harmless and affirmed the conviction. Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963). But we remanded the case to the district judge to reconsider the sentence because there was "no indication here that the court * * * made use of any of the aids to sentencing placed at its disposal by the Congress of the United States. * * * In view of the fact * * * that the record reflects no response on the part of the court to appellant's request for examination prior to sentence, that request may not have been considered." 115 U.S.App.D.C. at 354, 320 F.2d at 673.

On remand, the trial judge reconsidered the sentence without further investigation of any kind, and in particular, without referring the prisoner for a mental examination. The judge reinstated the original sentence.¹ The defendant had no hearing, though he sought one,² on the need for a mental examination. Reconsideration of the sentence occurred in the defendant's absence, though Rule 43, F.R.CRIM.P., requires his presence "at every stage of the trial * * * including the imposition of sentence."³ Leach's counsel also was not present at the reconsideration of the sentence, though this was an important step in the proceedings against him. Compare White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).

The judge gave four reasons for adhering to the former sentence: the probation officer had recommended the maximum sentence and had not himself, as he had power to do (D.C.CODE § 24-106), referred Leach for a mental examination; the crime was a serious one; the defendant had a record of repeated robberies; and "there was no competent evidence of any kind prior to, during or after the trial or prior to the imposition of sentence, that the defendant Leach was suffering from any mental illness."

We think these reasons do not support the judge's decision. That the probation officer failed to refer Leach for an examination is no reason for the judge, who is in a supervisory capacity over the officers, to fail also.⁴ That the crime was serious and that previous efforts at rehabilitation had collapsed made this the sort of case in which further study was needed.⁵ That the judge thought there was no competent evidence of "mental illness" should not have precluded an examination as an aid to sentencing and treatment.⁶

The adamant refusal in this case to refer the prisoner for a mental examination was an abuse of discretion. Three statutes make a psychological evaluation of the prisoner available to the sentencing judge in the District of Columbia. The court may refer him to a mental hospital for examination if "it shall appear * * * from the court's own observations or from prima facie evidence * * * that the accused is of unsound mind or is mentally incompetent * * * to understand the proceedings." D.C.CODE § 24-301(a). This statute may have misled the judge. He stated that there "was no evidence * * that the defendant had any mental illness," which implies that he thought the conditions set by § 24-301 are always requisite for a pre-sentence examination. But provisions other than § 24-301 allow such examinations and there are other reasons than those in § 24-301 for ordering such examinations.⁷ In Leach's case extreme recidivism was combined with a request for aid, and the probation officer, who had investigated Leach's background and had talked to him at length, called him a psychopathic offender. The diagnosis of the New Jersey State Prison, part of the pre-sentence report, was: "psychopathic personality, unstable, unreliable, recidivistic, antisocial, poor prognosis for good adjustment if released." This might well be a sufficient prima facie case for an examination.⁸ But assuming arguendo that it was not, it was enough to make clear the usefulness of a psychological evaluation in determining the sentence.

Section 24-106 (D.C.CODE) provides "a qualified psychiatrist and a qualified psychologist" for the district judges and the probation officers, among others, "to assist them in carrying out their duties." The statute leaves to the judges' discretion the cases in which they should use the Legal Psychiatric Services. But we pointed out in our former opinion herein that the District Court had recently refused to employ the service at all. This seems to reflect a failure to exercise discretion. In 1960, 51 cases were referred to the service and in 1962 only 3.⁹ In the absence of any indication of major change in the types of cases before the courts, or of poor performance by the service, we were at a loss to discover the reason for this sudden drop in referrals. Leach could have been examined under this statute.¹⁰

Also open to the sentencing judge is the possibility of sentencing the prisoner, then referring the prisoner to the custody of the Attorney General where the Prison Bureau may make a complete survey of his mental, social and emotional adjustment in a controlled atmosphere.¹¹ Rule 35, FED.R.CRIM.P., provides that "the court may reduce a sentence within 60 days after it is imposed." Thus the judge may refer the prisoner for two months of study and if a prognosis for rehabilitation appears he may then reduce the sentence.

The widely acknowledged usefulness of this technique moved Congress in 1958 "to make the opportunity for study more certain"¹² by allowing a Federal judge to refer a prisoner for a possible 6-month rather than 2-month period. 18 U.S.C. § 4208(b). The statute calls for the collection of "data regarding the prisoner's previous delinquency or criminal experience, pertinent circumstances of his social background, his capabilities, his mental and physical health, and such other factors as may be considered pertinent." 18 U.S.C. § 4208(c). Though the 6-month period is not applicable to offenses under the D.C. Code, the opportunity to reduce a sentence after evaluation is available for a 60-day period¹³ under Rule 35, FED.R. CRIM.P.

Section 4208(b) was one of a group of statutory changes by which Congress showed profound interest in the rehabilitative function of sentencing and recognized the potential value of modern psychological knowledge in achieving the aim.¹⁴ The legislation resulted from a movement by judges over the country to examine and improve sentencing techniques.¹⁵ The traditional effort to make the punishment fit the crime is largely superseded by an effort to make the treatment fit the offender. The presentence report in which a probation officer makes a study of the social background and history of the offender has become routine. This court recently reversed a case in which a judge sentenced two youthful offenders immediately after trial without awaiting a pre-sentence report. Peters v. United States, 113 U.S. App.D.C. 236, 307 F.2d 193 (1962). Psychiatric evaluation through the Legal Psychiatric Services or through the Prison Bureau program, like the presentence report, is a useful tool for rehabilitative rather than retributive sentencing. Such evaluation does not, of course, provide all the answers to the sentencing puzzle, but Congress and experts in criminology agree that it has a crucial place in the process.

This plainly appears from House and Senate reports on § 4208(b):

"The Federal judge has a heavy caseload, and the time and resources available to him in the determination of sentences are extremely limited. He frequently does not get sufficient information from the prosecuting attorney, the defense attorney, the probation officer\'s presentence report, or the defendant himself to enable the court to formulate a sentence which is equitable both to the defendant and to the public. H.Rep. No. 1946, 85th Cong., 2d Sess. 6 (1958).

"This observation and diagnosis would be extremely helpful to the court in making disposition in certain types of cases; particularly where a difficult medical, psychiatric, sex, or rehabilitative problem may be involved." S.Rep. No. 2013, 85th Cong., 2d Sess. 10, U.S.Code Congressional and Administrative News, p. 3898 (1958).

Since these considerations apply to Leach's case, we must respectfully reject the dissent's contention at pp. 954, 955 that the concerns of § 4208(b) are somehow inapplicable.

A judge sentencing for a D.C. Code violation has two sources other than D.C.CODE § 24-301(a), supra p. 948, from which to obtain a psychiatric evaluation: The Legal Psychiatric Services, D.C.CODE § 24-106, and the two-month study made possible by Rule 35, Fed.R. CRIM.P. But the first has fallen into desuetude and the judges have ignored the second even after its endorsement by Congress in 18 U.S.C. § 4208(b). Against this background of neglect, Leach's case is a dramatic example of the need for such services. If Leach, his family or friends had had the intellectual and financial ability, he would have been able to present...