United States v. Ragen

• Decision Date: 13 March 1945
• Docket Number: No. 45C88.,45C88.
• Parties: UNITED STATES ex rel. HOWARD v. RAGEN, Warden.
• Court: U.S. District Court — Northern District of Illinois

59 F. Supp. 374

UNITED STATES ex rel. HOWARD v. RAGEN, Warden.

No. 45C88.

District Court, N. D. Illinois, E. D.

March 13, 1945.

William Scott Stewart, of Chicago, Ill., for relator.

George F. Barrett, Atty. Gen., of Illinois, for respondent.

SHAW, District Judge.

The petitioner is a colored man forty-three years old who has been permitted to sue herein as a poor person and who is represented in this proceeding by William Scott Stewart of Chicago who consented to act as amicus curiae. This prisoner has a bad criminal record, as will be noted herein, and it is apparent and natural that the parole board (Division of Correction of Department of Public Welfare) is of the opinion that he should be incarcerated for the longest possible time. He comes here, however, claiming the protection of the 14th amendment, and because he is a citizen of the United States he is entitled to that protection regardless of his record. So far as the decisions of the Supreme Court of Illinois are concerned the parole board is right in its rulings and if those decisions are right and correctly reflect the meaning and spirit of the 14th amendment the prisoner must be remanded. It is to that narrow point that I must direct this inquiry.

Nineteen years ago, on March 17, 1926, the petitioner was convicted of larceny in Chicago and was duly and lawfully sentenced to serve a term of from one to ten years in the Illinois Penitentiary. No question is raised as to the lawfulness of that conviction and sentence. Pursuant to mittimus issued on that judgment he was kept in custody in the penitentiary at Joliet a little more than three years, until May 17, 1929, at which time he was given a "banishee" or out-of-state parole which carried the provision that the petitioner was "To do parole in Georgia." This type of parole was authorized by the statutes of Illinois then in force and those statutory provisions provided then that if the parolee should return to Illinois he would be arrested and required to serve the remainder of his term. The act has since been amended to read be returned, but the amendment is long since petitioner's conviction and is immaterial here.

After being paroled the petitioner proceeded with some celerity to violate his agreement and promptly became an inmate of the Ohio State Penitentiary on conviction of larceny. While petitioner was so incarcerated there was correspondence between the Ohio and Illinois prison officials, and in response to an inquiry from Ohio an officer of the Illinois Division of Pardons and Paroles wrote to the Director of the Ohio State Bureau of Identification, under date of July 1932, that the petitioner had been given an out-of-state parole and that "so long as he stays out of the boundaries of Illinois we will not incur the expense against the State to apprehend him." At the time of this correspondence there was an outstanding warden's warrant for the apprehension of the prisoner dated some years prior on December 7, 1929. Apparently the lodgment of this warrant with the Ohio authorities was the cause of the correspondence. At any rate, Illinois withdrew its detainer, the prisoner completed service of his sentence and he was released from the Ohio prison.

His liberty, however, was of no great duration. In 1934 he was convicted of robbery in the State of Kentucky and sentenced to serve a term of five years in the penitentiary at Frankfort in that State, which he did serve and was again released. While there is no direct documentary evidence on the point I clearly infer from the testimony of a member of the Parole Board and its course of business that Illinois had notice and knowledge of this imprisonment and could have taken the petitioner into custody at that time had it wished to do so. Illinois refrained.

It was the testimony of this member of the Parole Board that up until 1938 it was the settled policy and practice of the Parole Board to ignore out-of-state parolees so long as they stayed out of the State; that this policy was changed in about 1938 and the new policy adopted of running down these old offenders when and where they could be found and bringing them back to serve the unserved portion of their "Time."

Pursuant to this new policy the petitioner was apprehended. He committed a second offense in Kentucky in 1941, was again sent to the Kentucky Penitentiary, and when he was released was arrested by the Illinois authorities on June 20, 1944. This arrest was made and returned on the 14-year old warrant of December 7, 1929 and, as will be noted, more than 8 years after the expiration of the mittimus under which he was originally held. Since that arrest he has been, up to the date of hearing, in the custody of the respondent, who insists on these facts that he is lawfully so held. In taking this position the warden is right if the decisions of the Supreme Court of Illinois give proper effect to the 14th amendment.

The Supreme Court of Illinois has closed the door to any further consideration of this question and has said so. I will cite the cases and quote the precise language a little later, mentioning it now only as preliminary to a statement of the position taken by the warden and the Attorney General on this hearing.

This position of the Attorney General was frank and clean-cut and, I think, quite squarely based on the Illinois decisions. In open court it was admitted that Illinois had declined to resume custody of the petitioner when he was released in Ohio in 1932 and again in Kentucky some years later. It was admitted that he was recaptured in 1944 because of a change of policy of the Parole Board and not any change in the law. In response to a direct question by the court the Attorney General stated it to be the position and theory of the State that: If a parolee violated the terms of his parole at any time within the term of his original sentence, then the State of Illinois, through its parole officers, could exercise or withhold its right to recapture and re-imprison the parolee, and that the State could withhold such action as long as it pleased and exercise it when it pleased within the lifetime of the parolee, regardless, as in this case, of the long-time expiration of the original sentence. And in this position the Attorney General is sustained by the decisions of the Supreme Court of Illinois.

Those decisions are clear and impossible of being misunderstood. They are many in number and need not all be cited. I am informed that there are one or two later ones, but the most recent to come to my attention is People v. Dixon, 387 Ill. 420, 56 N.E.2d 816, 819, in which the rule is stated and in which the matter is declared no longer open to argument. I quote from that case: "* * * It must be conceded as definitely settled in this State that from the date of his parole violation in December, 1931, he owed the State of Illinois service for the remainder of his maximum sentence, or eight years and approximately three and a half months. People v. Crowe, 387 Ill. 53, 55 N.E.2d 84; Purdue v. Ragen, 375 Ill. 98, 30 N.E.2d 637; People ex rel. Ross v. Becker, 382 Ill. 404, 47 N.E.2d 475; Ill.Rev.Stat.1931, chap. 38, par. 808, sec. 7a. This term could be satisfied only by actual service, unless remitted by some legal authority. People ex rel. Ross v. Becker, 382 Ill. 404, 47 N.E.2d 475; Purdue v. Ragen, 375 Ill. 98, 30 N.E.2d 637; People ex rel. Cassidy v. McKinley, 372 Ill. 247, 23 N.E.2d 50; People ex rel. Kerner v. McKinley, 371 Ill. 190, 20 N.E.2d 498; People ex rel. Crews v. Toman, 367 Ill. 163, 10 N.E.2d 657. There were only two methods provided by law for this unsatisfied sentence to be legally remitted, (1) a compliance with the conditions of his parole followed by a discharge granted by the parole authorities, approved by the Governor (People ex rel. Michaels v. Bowen, 367 Ill. 589, 12 N.E.2d 625); and (2) by a pardon or commutation of sentence by the Governor, the power to issue which cannot be delegated. People ex rel. Brundage v. LaBuy, 285 Ill. 141, 120 N.E. 537; People ex. rel. Fullenwider v. Jenkins, 322 Ill. 33, 152 N.E. 549. It is conceded that these are the only methods by which the term of unsatisfied service could be remitted by some legal authority, and that no such authority had been exercised. The failure of officials to perform their duties creates no right in a defendant to have his discharge as a beneficiary of their failure. People v. Crowe, 387 Ill. 53, 55 N.E.2d 84; People ex rel. Kerner v. McKinley, 371 Ill. 190, 20 N.E.2d 498; People ex rel. Courtney v. Thompson, 358 Ill. 81, 192 N.E. 693; People ex rel. Martin v. Mallary, 195 Ill. 582, 63 N.E. 508, 88 Am.St.Rep. 212."

It will be noted that in that case the case of Anderson v. Corall, 263 U.S. 193, 44 S. Ct. 43, 68 L.Ed. 247, from the United States Supreme Court is quoted from. It need only be noted in passing that the case is not in point as no officer or agent of the United States ever waived or attempted to waive custody of the prisoner nor delay execution of the judgment of the United States. The prisoner in that case was in no different position than any other escapee. No officer of the United States waived or refused to take custody of the prisoner and no officer of the United States claimed the right to suspend execution of his mittimus or warrant indefinitely or until such time as he might see fit to recapture the prisoner. The case is no authority for the gist of the holding in the Dixon case. That gist, as I see it, lies in the last sentence: "The failure of officials to perform their duties creates no right in a defendant to have his discharge as a beneficiary of their failure."

The line of decisions of the Illinois Supreme Court seem to depend on two principal grounds: (1) that no one but the Governor can exercise the pardoning power and (2) that the failure of public officials to do their "duty" cannot inure to the benefit of a defendant. The first position is undoubtedly sound...