Toyosaburo Korematsu v. United States

• Decision Date: 01 June 1943
• Docket Number: No. 912,912
• Citation: 87 L.Ed. 1497,319 U.S. 432,63 S.Ct. 1124
• Parties: TOYOSABURO KOREMATSU v. UNITED STATES
• Court: U.S. Supreme Court

319 U.S. 432

63 S.Ct. 1124

87 L.Ed. 1497

TOYOSABURO KOREMATSU

v UNITED STATES.

No. 912.

Argued May 11, 1943.

Decided June 1, 1943.

Mr. A. L. Wirin, of Los Angeles, Cal., for Korematsu.

Mr. John L. Burling, of New York City, for the United States.

Mr. Justice BLACK delivered the opinion of the Court.

Korematsu was found guilty by the District Court for the Northern District of California of remaining in the City of San Leandro, California, in violation of 18 U.S.C. § 97a, 18 U.S.C.A. § 97a, and the orders issued thereunder.¹ The District Court's order was that he 'be placed on probation for the period of five (5) years, the terms and conditions of the probation to be stated to said defendant by the Probation Officer of this Court. Further ordered that the bond heretofore given for the appearance of the defendant be exonerated. Ordered pronouncing of judgment be suspended.'

The defendant appealed to the Circuit Court of Appeals for the Ninth Circuit which, under 28 U.S.C. § 225, 28 U.S.C.A. § 225, has 'jurisdiction to review by appeal final decisions.' The Circuit Court of Appeals, doubting whether it had jurisdiction to hear an appeal from an order placing the defendant on probation without first formally sentencing him, has certified to us the following question under § 239 of the Judicial Code, 28 U.S.C.A. § 346:

'After a finding of guilt in such a criminal proceeding as the instant case, in which neither imprisonment in a jail or penitentiary nor a fine is imposed, is an order by the district court, that the convicted man 'be placed on probation for the period of five (5) years' a final decision reviewable on appeal by this circuit court of appeals?'

The federal probation law authorizes a district judge 'after conviction or after a plea of guilty or nolo contendere * * * to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms' as seem wise. 18 U.S.C. § 724, 18 U.S.C.A. § 724. In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204, we held that when a court had imposed a sentence and then suspended its execution, the judgment was final and would support an appeal. The question here is whether the judgment is equally final when the imposition of sentence itself is suspended and the defendant subjected to probation.² The government concedes that this question should be answered in the affirmative.

It has often been said that there can be no 'final judgment' in a criminal case prior to actual sentence, Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702; Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283, and this proposition was restated in Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 83 L.Ed. 204.³ In applying this general principle to a situation like that of the instant case, the Second and Fourth Circuit Courts of Appeal have concluded that they lacked jurisdiction to hear an appeal from an order placing a defendant on probation without first imposing sentence. United States v. Lecato, 29 F.2d 694, 695; Birnbaum v. United States, 107 F.2d 885, 126 A.L.R. 1207. The Fifth Circuit appears to take the opposite view. Nix v. United States, 131 F.2d 857.

The 'sentence is the judgment' phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. Thus in Miller v. Aderhold, supra, imposition of sentence was suspended and the defendant was put under no obligation at all. Hence the Court held that there was no jurisdiction to hear the appeal. But certainly when discipline has been imposed, the defendant is entitled to review.

In the Berman case, supra, we held that the appeal was proper where the sentence was imposed and suspended, and the defendant was placed on probation. The probationary surveillance is the same whether or not sentence is imposed. In either case, the probation order follows a finding of guilt or a plea of nolo contendere. Thereafter, the defendant must abide by the orders of the court. He must obey the terms and conditions imposed upon him, or subject himself to a possible revocation or modification of his probation; and under some circumstances he may, during the probationary period, be required to pay a fine, or make repara- tion to aggrieved parties, or provide for the support of persons for whom he is legally responsible. 18 U.S.C. § 724, 18 U.S.C.A. § 724. He is under the 'supervision' of the probation officer whose duty it is to make reports to the court concerning his activities, 18 U.S.C. § 727, 18 U.S.C.A. § 727, and at 'any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest.' 18 U.S.C. § 725, 18 U.S.C.A. § 725. These and other...