United States v. Thomas, 69 Civ. 1796.

• Decision Date: 27 June 1969
• Docket Number: No. 69 Civ. 1796.,69 Civ. 1796.
• Citation: 300 F. Supp. 1201
• Parties: UNITED STATES of America, v. Donald THOMAS, Defendant.
• Court: U.S. District Court — Southern District of New York

300 F. Supp. 1201

UNITED STATES of America, v. Donald THOMAS, Defendant.

No. 69 Civ. 1796.

United States District Court S. D. New York.

June 27, 1969.

Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, for the United States; Jack Kaplan, Asst. U. S. Atty., of counsel.

Henry A. Freedman, Center on Social Welfare Policy and Law, New York City, for defendant.

OPINION

FRANKEL, District Judge.

Donald Thomas was found guilty on December 16, 1965, of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. The maximum sentence under that statute is five years' imprisonment, a term which is not frequently imposed and would probably not have been imposed in this case despite defendant's discouraging record of prior difficulties. In the unlikely event the maximum sentence had been decreed, defendant would in the normal course have been released after serving about 3½ years,¹ and he would have been entitled to credit for 61 days of pre-sentence confinement because of his inability to make bail. Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966); Sobell v. United States, 407 F.2d 180 (2d Cir.1969).

However, in sentencing the defendant, the court determined that he should have what was deemed the benefit of treatment as a young adult offender under the Youth Corrections Act, 18 U.S.C. § 5005 et seq., as made applicable to this 22-year-old defendant by 18 U.S.C. § 4209. Under those provisions the defendant was, "in lieu of the penalty of imprisonment otherwise provided by law, sentenced * * * to the custody of the Attorney General for treatment and supervision * * * until discharged by the Youth Correction Division of the Board of Parole as provided in section 5017(c) * * *." 18 U.S.C. § 5010(b). This presented for him the following possibilities:

(1) Conditional release under supervision "at any time" under 18 U.S.C. § 5017(a).

(2) Unconditional discharge by the Division's decision "at the expiration of one year from the date of conditional release." 18 U.S.C. § 5017(b).

(3) Instead of either or both of the foregoing relatively cheerful possibilities, a mandatory conditional release after four years of confinement, subject to recommitment thereafter on the Division's order for a further period which could extend until "six years from the date of * * * conviction." 18 U.S. C. §§ 5017(c) and 5020.

Whatever any of us may have hoped or intended, the defendant in this case has not flourished under the beneficent auspices of the Youth Corrections Act. Unresponsive to programs for his rehabilitation, he has spent much of his time in institutions, and under regimens, substantially like those of ordinary adult federal prisoners. He is at this time in such a situation. He makes the astute prediction that he is unlikely to receive his conditional release before the end of the four-year period after which that becomes his absolute right. In what the court has treated, without procedural dispute, as a motion under 28 U.S.C. § 2255, he asks that the four-year maximum (or, if it should come to that, the later six-year maximum) be reduced by the 61 days he spent in confinement before he was sentenced. He points out, again without dispute, that those days in jail were suffered because he could not post the bail set as a condition of release. And he urges that the two months of freedom he seeks are rightfully his under 18 U.S.C. § 3568 (1964), as construed in Sobell v. United States, supra.²

The government, while by no means wholly unsympathetic, urges that the provision for credit under 18 U.S.C. § 3568, as illuminated by Sobell, is inapplicable because Thomas was locked up "for treatment and supervision," and not subjected to "imprisonment" under § 3568. Therefore, it is said, whatever he might prefer, the Attorney General is obliged, by what Congress wrote and did not write, to oppose this motion. The argument is unpersuasive textually and penologically.

Starting with the pertinent statutory words, we note that Congress provided that the kind of sentence Thomas is serving should be imposed "in lieu of the penalty of imprisonment otherwise provided by law * * *." 18 U.S.C. § 5010(b). Even as a semantic exercise, the government's thesis that this is "`treatment and supervision' * * * as distinguished from `imprisonment'" has little to recommend it. As Chief Judge Sobeloff observed in Pilkington v. United States, 315 F.2d 204, 208 (4th Cir.1963), "the euphemism * * * does not alter the arithmetic * * *." Like the arithmetic, the months and years passed in "the custody of the Attorney General," 18 U.S.C. § 5010(b), are not altered for purposes meaningful here because the judgment from which they flow was meant specially to help the prisoner.³

It is not essential to this conclusion, though it is a fact, that young Thomas has served much of his sentence under the same conditions as those of prisoners not committed for the "treatment" accorded "youth" or "young adult" offenders. It is enough that Congress, when it gave a "credit" to prevent the arbitrary lengthening of maximum sentences for people who could not make bail, said nothing to suggest that confinement meant for the prisoner's benefit should not be subject to this rule of primitive fairness. There is not a word in the pertinent statutes to justify the thought that the young person held before sentence without bail was intended to have his "treatment" enhanced by that period of custody over and above the four- or six-year maximum otherwise authorized.

Thomas is different from other prisoners, the United States Attorney argues, because "the eligibility for prompt parole and the opportunity to have his conviction set aside under 18 U.S.C. § 5021 are substantial benefits that Thomas has, but which the regular prisoners in the penitentiary do not have * * *."⁴ By his motion now, the argument continues, this defendant seeks "the benefits of the Youth Corrections Act without any of its detriments."⁵ One obvious trouble with the argument is that Thomas has in fact had no "benefits," only "detriments." If his neglected "opportunity" was a benefit in some sense, it was not one he sought. More importantly, the "benefits" he neglected to realize are not a relevant concern of any kind under the pertinent statutes. Congress did not distinguish among the kinds of post-sentence "custody" — in terms of "benefits" or "detriments" or otherwise — against which presentence "custody" should be credited. There is no reason why we should strain to detect or create a distinction of such arid refinement. On the contrary, we avoid constitutional problems of substantial proportions by following the literal and sensible meaning of what Congress wrote. Cf. Sobell v. United States, 407 F.2d at 182; Stapf v. United States, 367 F.2d at 329-330.

The fact is, of course, that the question before the court will arise only for defendants seeking an equality of detriments, not for those demanding cut-rate benefits. The narrow issue is not posed unless the defendant approaches the maximum, or something very close to the maximum, of either four or six years. Cf. Putt v. United States, 392 F.2d 64...