Warden, Lewisburg Penitentiary v. Marrero 8212 831

• Decision Date: 19 June 1974
• Docket Number: No. 73,73
• Citation: 417 U.S. 653,94 S.Ct. 2532,41 L.Ed.2d 383
• Parties: WARDEN, LEWISBURG PENITENTIARY, Petitioner, v. Benigno MARRERO. —831
• Court: U.S. Supreme Court

417 U.S. 653

94 S.Ct. 2532

41 L.Ed.2d 383

WARDEN, LEWISBURG PENITENTIARY, Petitioner,

v Benigno MARRERO.

No. 73—831.

Argued April 29, 1974.

Decided June 19, 1974.

Rehearing Denied Nov. 11, 1974.

See 419 U.S. 1014, 95 S.Ct. 334.

Syllabus

The Comprehensive Drug Abuse Prevention and Control Act of 1970, which became effective May 1, 1971, makes parole under the general parole statute, 18 U.S.C. § 4202, available for almost all narcotics offenders. Respondent, who had been sentenced before May 1, 1971, and was ineligible for parole under 26 U.S.C. § 7237(d), which was repealed by the 1970 Act, sought habeas corpus in the District Court, claiming parole eligibility when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility under 26 U.S.C. § 7237(d) had been preserved by § 1103(a) of the 1970 statute (which provides that '(p)rosecutions' for violations before May 1, 1971, shall not be affected by repeals of statutory provisions) and by the general saving clause, 1 U.S.C. § 109 (which provides that '(t)he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute . . .'). The Court of Appeals reversed. Held:

1. Section 1103(a) of the 1970 statute bars the Board of Parole from considering respondent for parole under 18 U.S.C. § 4202, since parole eligibility, as a practical matter, is determined at the time of sentencing, and sentencing is a part of the concept of 'prosecution,' saved by § 1103(a), Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528. Pp. 657—659.

2. The Board of Parole is also barred by the general saving clause from considering respondent for parole, since it is clear that Congress intended ineligibility for parole in § 7237(d) to be treated as part of the offender's 'punishment,' and therefore the prohibition against the offender's eligibility for parole under 18 U.S.C. § 4202 is a 'penalty, forfeiture, or liability' under the saving clause. Pp. 659—664.

483 F.2d 656, reversed.

Jewell S.

Lafontant, Washington, D.C., for petitioner.

John J. Witmeyer, III, New York City, for respondent, pro hac vice, by special leave of Court.

Mr. Justice BRENNAN delivered the opinion of the Court.

A now-repealed statute 26 U.S.C. § 7237(d),¹ provided, inter alia, that certain narcotics offenders sentenced to mandatory minimum prison terms should be ineligible for parole under the general parole statute, 18 U.S.C § 4202. ² Section 7237(d) was repealed, effective May 1, 1971, 84 Stat. 1292, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which makes parole under § 4202 available for almost all narcotics offenders. The question for decision in this case is whether the parole ineligibility provision of 26 U.S.C. § 7237(d) survives the repealer, so that a narcotics offender who has served more than one-third of a sentence imposed before May 1, 1971, remains ineligible for parole consideration under 18 U.S.C. § 4202.

Respondent was convicted of narcotics offenses and, as a second offender, was sentenced before May 1, 1971, to concurrent terms of 10 years' imprisonment on each of two counts. 450 F.2d 373, 374—375 (CA2 1971).³ On February 24, 1972, respondent sought habeas corpus in the United States District Court for the Middle District of Pennsylvania, claiming that, since 26 U.S.C. § 7237(d) had been repealed, he should be eligible for consideration for parole under 18 U.S.C. § 4202 when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility of 26 U.S.C. § 7237(d) had been preserved by § 1103(a) of the 1970 statute⁴ and by 1 U.S.C. § 109.⁵ 347 F.Supp. 99. The Court of Appeals for the Third Circuit reversed, holding that neither § 1103(a) of the 1970 statute nor 1 U.S.C. § 109 continued the prohibition on eligibility for parole consideration in 26 U.S.C. § 7237(d). 483 F.2d 656 (1973).⁶ We granted certiorari to resolve a conflict among the Courts of Appeals.⁷ 414 U.S. 1128, 94 S.Ct. 865, 38 L.Ed.2d 752 (1973). We agree with the District Court and reverse the judgment of the Court of Appeals.

Bradley v. United States, 410 U.S. 605, 611, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528 (1973), expressly reserved decision of the question now before us. Bradley involved the conviction and sentencing after May 1, 1971, of offenders who committed narcotics offenses before that date. We held that sentencing is a part of the concept of 'prosecution' and therefore that the provision of § 1103(a) of the 1970 Act that '(p)rosecutions for any violation of law occurring (before May 1, 1971) shall not be affected' by the repeal of 26 U.S.C. § 7237(d), barred the sentencing judge from suspending the sentences of, or granting probation to, the Bradley petitioners and also barred him from making them eligible for early parole, before they had served one-third of their sentences, under 18 U.S.C. § 4208(a).⁸ Although stating in a footnote that '(t)he decision to grant parole under (18 U.S.C.) § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated,' we concluded that '(w)hether § 1103(a) or the general saving statute, 1 U.S.C. § 109, limits that decision is a question we cannot consider in this case.' 410 U.S., at 611 n. 6, 93 S.Ct., at 1156.

I

We hold that § 1103(a) bars the Board of Parole from considering respondent for parole under 18 U.S.C. s 4202. In concluding in Bradley that ineligibility for early parole under 18 U.S.C. § 4208(a) was part of the 'prosecution,' we reasoned that, since a District Judge's decision to make an offender eligible for early parole is made at the time of entering a judgment of conviction, the decision was part of the sentence and therefore also part of the 'prosecution.' 410 U.S., at 611, 93 S.Ct., at 1155.

Similarly, a pragmatic view of sentencing requires the conclusion that parole eligibility under 18 U.S.C. § 4202 is also determined at the time of sentence. Since, under § 4202, an offender becomes eligible for parole after serving one-third of his sentence, see n. 2, supra, parole eligibility is a function of the length of the sentence fixed by the district judge. Although, of course, the precise time at which the offender becomes eligible for parole is not part of the sentence, as it is in the case of § 4208(a), it is implicit in the terms of the sentence. And because it could not be seriously argued that sentencing decisions are made without regard to the period of time a defendant must spend in prison before becoming eligible for parole, or that such decisions would not be drastically affected by a substantial change in the proportion of the sentence required to be served before becoming eligible, parole eligibility can be properly viewed as being determined—and deliberately so—by the sentence of the district judge. Eligibility for parole under § 4202 is thus determined at the time of sentencing and, under the teaching of Bradley, is part of the 'prosecution' saved by § 1103(a).

We therefore reject respondent's argument that our Bradley footnote should be read as holding that, because the decision to grant parole under § 4202 is for the Board of Parole, not the trial judge, and is arrived at after the sentence has been entered and the prosecution has come to an end, the parole eligibility decision is not part of the 'prosecution' for purposes of § 1103(a). Apart from the obvious answer that the Court could not reasonably be thought to have decided in a footnote a question 'on which' we said in the text, 'we express no opinion,' 410 U.S., at 611, 93 S.Ct., at 1156, respondent's reliance upon the footnote both proves too little and too much. It proves too little, because the fact that the Board of Parole, not the sentencing judge, finally determines whether and when an offender should be released on parole does not undercut our conclusion that the district judge, at the time of sentencing, determines when the offender will become eligible for consideration for parole and the Board's action simply implements that determination.⁹ It proves too much, because, if—as the respondent would have it—the proper focus is upon the time at which release on parole is actually granted or denied, the parole decision, whether made under 18 U.S.C. § 4208(a) or 18 U.S.C. § 4202, is made long after the 'prosecution' terminates; for under both provisions, the Board of Parole ultimately decides whether and when the offender is to be released. But, as previously mentioned, we held in Bradley that the district judge's decision to deny early parole under § 4208(a) was part of the sentence, and therefore part of the 'prosecution.'

II

We hold further that the general saving clause, 1 U.S.C. § 109, also bars the Board of Parole from considering respondent for parole.¹⁰

Congress enacted its first general saving provision, c. 71, 16 Stat. 432 (1871), to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of 'all prosecutions which had not reached final disposition in the highest court authorized to review them.' Bradley v. United States, 410 U.S., at 607, 93 S.Ct., at 1154; see Bell v. Maryland, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964). Common-law abatements resulted not only from unequivocal statutory repeals, but also from repeals and re-enactments with different penalties, whether the re-enacted legislation increased or decreased the penalties. See Bradley v. United States, supra, 410 U.S., at 607—608, 93 S.Ct., at 1153—1154; Lindzey v. State, 65 Miss. 542, 5 So. 99, (1888); Hartung v. People, 22 N.Y. 95 (1860); Comment, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121—126 (1972). To avoid such abatements—often...