Affronti v. United States

PETITIONER:Affronti
RESPONDENT:United States
LOCATION:

DOCKET NO.: 71
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

ARGUED: Nov 15, 1955
DECIDED: Dec 05, 1955

Facts of the case

Question

Audio Transcription for Oral Argument – November 15, 1955 in Affronti v. United States

Earl Warren:

Number 71, Lonnie Affronti versus United States of America.

Mr. Murphy.

Harry F. Murphy:

May it please the Court.

We are here by writ of certiorari to the Eighth Circuit.

There is one question to be decided in this case, decided carefully.

Upon sentence to consecutive sentences or terms by a District Court.

The defending pattern started the service of a first sentence.

Thus, the District Court thereafter have jurisdiction to suspend the execution of the remaining sentences and place the defendant on probation.

William O. Douglas:

Consecutive sentences.

Harry F. Murphy:

Consecutive sentences.

In this case, the defendant, Affronti, was indicted in 1932 by a grand jury in the Western District of Missouri.

Charged in an indictment in ten counts with the illegal sale of narcotics.

I’ve mentioned the dates because they, if not of importance, will be of interest.

In 1944, the defendant was brought in to the District Court at Kansas City on a writ of habeas corpus ad prosequendum from the Missouri State Penitentiary where he was in the service of a sentence for second degree murder.

The District Judge on that — at that time was Judge Caskie Collet.

Upon trial before a jury, the defendant was acquitted on the first of the ten counts, found guilty on the remaining nine and sentence was pronounced disclosed.

On all nine counts of the — the indictment, he was sentenced to serve five years which was the maximum sentence under the statute that had been violated.Sentences two, three, four and five were pronounced to run consecutively.

The remaining five sentences, sentence was suspended and the defendant was to be placed upon probation for a period of 25 years.

The judgment further provided that the sentence on the second count would be to commence at the time he was released from authorities in Missouri State.

In 1949, after his release from the Missouri State Penitentiary, he was delivered to the United States Marshal for the service of the first five years of the second count of the indictment.

In 1953, four years later —

Was the aggregate prison sentence was 20 or 25 years?

Harry F. Murphy:

Twenty years.

Twenty years.

Harry F. Murphy:

Twenty years, four — four counts of five years.

But the computation is a question whether he had yet started the service as — as second of his third five years, but in 1943, at which time Judge Duncan had succeeded Judge Collet as the District Judge in that division, Judge Collet having been promoted to the Eighth Circuit bench.

A motion was filed on his behalf requesting that the remaining sentences yet to be served, either the third, fourth, and fifth counts or the fourth and fifth, that the execution of the sentence as yet to be served be suspended and be placed on probation.

Now, in — two months prior to the filing of the motion on behalf of the petitioner in the District Court, Judge Reeves, another division of the Western District had ruled in the case of Phillips versus the United States for the facts as far as sentences are concerned, were identical with the facts in this case, and that Phillips, the defendant, was in the service of the first of three consecutive terms.

That the Court was without jurisdiction to entertain such a motion as the term had passed and the 60 days had — had passed when he had — after he had been first sentenced.

Pending the appeal of the Phillips case, Judge Duncan held in abeyance of ruling on the Affronti case.

Harry F. Murphy:

On appeal to the United States Court of Appeals for the Eighth Circuit, the Phillips decision was affirmed.

On that bench, sitting as a member of the Court of Appeals, was Judge Collet.

And in a dissenting opinion, he held that a District Court in his opinion had a right to retain jurisdiction over sentences yet to be served.

After the Phillips case was passed, the time had passed, no application was made to this Court for certiorari, although the Court of Appeals had recommended that he’d be permitted to apply without the payment of cost.

The Court — appeal was taken in the Affronti case to the same court.

And again, on that same court, Judge Collet sat as a member of the Court of Appeals.

Following the Phillips case, the Court of Appeals affirmed the Phillips case.

Judge Collet consistently again dissenting.

Again, that Court recommended that Affronti be permitted to apply for certiorari without the payment of costs.

The basis of the ruling in the Phillips case, opinion by Judge Reeves, the District Judge and followed up by the Court of Appeals, was an early case passed on this Court in 1948 by the opinion written by Chief Justice Taft, Murray versus the United States, in which the facts briefly were these.

A man by the name of Cook had been sentenced in a Texas District Court for a total of 14 years and some months.

A man in Nebraska had been sentenced to three months on six counts to run concurrently.

After the defendant Murray had served one day of his three-month sentence, the sentencing judge made an order suspending the execution of that sentence and placed Murray on probation for the balance of his term.

Shortly thereafter in Texas, the District Court in the Cook case, after the service of sentence had been began by Cook for several years at least, on the one sentence according to the opinion, the Court in that case ordered the defendant placed on probation, suspended the execution of the remaining sentence then being served.

Upon appeal by the Government to this Court, certiorari from the Eighth Circuit and the Fifth, I believe it was, the opinion held that having once — once started the service of the sentence, the District Court was without power to place the defendant on probation suspend the execution of that sentence.

In that case, there was no question of consecutive sentences, although perhaps, in the Cook case, the sentence actually was of sentences running consecutively.

But that doesn’t appear to have been of any moment at least to the Court in the Murray opinion.

That created, if not confusion, at least some difference of opinions in the different circuits as to the right of the sentencing judge under the Probation Act to sentence and suspend at the same time.

Some courts holding that having sentenced on one count, the court could not, on remaining counts, place the — the defendant on probation.

That had been followed or there was some confusion in the various circuits or the districts, shall we say, until the Kirk case went up to the Ninth Circuit from California.

In that case, three defendants had been sentenced on consecutive terms, the first two of which were seventeen and a half years and the third for two years.

During the service of the first sentence by one of the defendants, the court in that case ordered the execution, suspend the remaining sentences, and at the completion of the service of that first sentence, the defendant was to be placed on probation.

Earl Warren:

Mr. Murphy, what statutory language do you rely upon for your position?

Harry F. Murphy:

Well the — the probation statute, I think, which the section —

Earl Warren:

3651?

Harry F. Murphy:

3651 —

Earl Warren:

What language there do you rely on to support your position?

Harry F. Murphy:

Well, frankly, I’m relying upon the language in the Kirk case which held — holds that the Court has jurisdiction to suspend the execution of sentences yet not served.

Earl Warren:

You mean beyond any statute?

Harry F. Murphy:

That —

Earl Warren:

Or do — do they get that power through a statute?

Harry F. Murphy:

Well, that’s a little bit puzzling to me at this time.

The statute hasn’t been —

Earl Warren:

And to me too.

Harry F. Murphy:

It hasn’t been construed, the language of the former statute was changed formerly reading after a conviction and to comply with the criminal — as — as part of the criminal code in the criminal statutes, the language was changed to “upon service or the entering of a judgment conviction.”

So, the conflict before this Court is between the Ninth Circuit in the Kirk case, was held on appeal that the District Court did have power, had been discretionary, of course, to suspend the execution of sentence yes — yet not served.

And the Eighth Circuit in this case which held before, had no jurisdiction.

Earl Warren:

But you don’t rely on any statutory language saying that the Court has the authority to grant probation under these circumstances.

Harry F. Murphy:

No, sir.

Felix Frankfurter:

This — is it not necessary for you to do so in view of the decision way back to the case of my youth, in Ex Parte United States in which this Court denies to the District Court the inherent power for — placing people on probation.

Harry F. Murphy:

That’s the Ex —

Felix Frankfurter:

That practice had been enforced time out of lines and there are no facilities that prior to prosecuting judges that this Court said, original place of jurisdiction.

Is that not the Probation Act this time, if you know?

Must even to turn on the statutes?

Harry F. Murphy:

Well, the statute, which was involved in the — in the Murray case had been enacted as I recall in 1925.

This was a basis for the ruling there that the Court could grant probation, which followed some eight years after, I think it’s Ex Parte Lange case that you have reference to and down to 1918.

In any event, the statute was passed in 1925, which permitted District Courts to suspend the execution and place defendants on probation.

The — the trouble here is that the question of the definition of a final judgment or a single judgment are separate sentences merged into one separate judgment so that the District Court would not have jurisdiction.

Felix Frankfurter:

You still haven’t furnished with the problem of construction by — if your answer to Chief Justice today relate what I — my means heard and I don’t think he’s got any permission at all —

Harry F. Murphy:

Well, the —

Felix Frankfurter:

— to so select the statute even though the statute doesn’t leave the word which fits your case.

Harry F. Murphy:

Well, of course, we have here in this particular case of conflict where Courts of Appeals have decided differently and —

Felix Frankfurter:

But it’s what they reflects to draw on the construction of the Probation Act, didn’t they?

Harry F. Murphy:

That’s correct.

Felix Frankfurter:

Well, I think you must have misunderstood the difficulty of the question.

Harry F. Murphy:

Well, I — I understand that you’re asking what statutory provisions we have here which give the District Court the right to suspend the execution.

Felix Frankfurter:

And you stay forward.

Harry F. Murphy:

And I state there’s no definition to this particular statute which says the Court does or does not have that right.

Felix Frankfurter:

That’s a different story to say.

You mean as if it’s spelled out in the statute.

Harry F. Murphy:

I’d say there is some confusion, exists in the wording of the statute without a definition from this Court.

Felix Frankfurter:

Whatever rights you press, they have — must have come out of that statute —

Harry F. Murphy:

That is correct.

Felix Frankfurter:

— on your account of it.

Harry F. Murphy:

Absent the statute, the Court has been held to have no power to place — suspend a non-probation.

Stanley Reed:

The statute says, upon entering a judgment of to which —

Harry F. Murphy:

That is right.

Stanley Reed:

— they suspended it.

Harry F. Murphy:

When does the judgment comes effective, that’s the thing that we haven’t forced here.

Stanley Reed:

Not to say were discussed there —

Harry F. Murphy:

Upon, immediately?

Stanley Reed:

Upon — upon entering.

Harry F. Murphy:

That’s right.

Well, that’s the — that’s the disturbing thing about the whole thing here, is that we have a man who is serving four sentences, totaling 20 years.

Judge Collet in his dissenting opinion in both appeals, that we’re bringing in this case what he had said in the opinion in the Phillips case.

Held that the sentencing judge in his opinion had the power at any time for the commencement of the service of any of the remaining sentences to come in and set that aside by putting the —

Felix Frankfurter:

Judge — Judge Collet didn’t rely on some inherent power.He said he mustn’t be barred from having that view by the Probation Act.

Harry F. Murphy:

That is right.

Well, we have, for consideration, just the — as I — as I view it, the three cases, the early case of Murray against the United States, the Phillips case in this Circuit and the Kirk case in the Ninth Circuit, whereas in the Court’s definition of the statute, if the Court may retain jurisdiction at any time for any of the remaining sentences served in, the Court would have jurisdiction to suspend the execution of the sentence of those remaining — the balance of those sentences.

Well, that’s it.

Earl Warren:

Mr. Lindsay.

John V. Lindsay:

May it please the Court.

When this Court decided the (Inaudible) case in 1916, which I believe is the case that Mr. Justice Frankfurter was referring to in Volume 242, it made two points clear.

First of all, that there was no power that common law — to suspend a sentence absolutely or permanently.

It did not exist.

And secondly, that the federal courts had no such power, despite the fact at which existed in some federal and in some state courts at the time.

“Recourse must be had to the Congress,” said this Court, whose power in this field in the language of the Court is adequately complete.

The result of the (Inaudible) case was continued and reinforced agitation on the part of the exponents of probation were some sort of legislation in this field, and it resulted in 1925 in the passage of the Probation Act of that year.

And that Act provided that after conviction or plea of guilty or nolo contendere, the Court, District Court, may suspend sentence and grant probation that the Court may suspend at the imposition or the execution of sentence and grant probation.

And of course that statute, spoken terms of a general or single sentence, there was no differentiation made in the case of a sentence involving multiple counts or indictments.

John V. Lindsay:

The chief difficulty that the federal courts had with the application of that statute was the question which was answered by this Court in Murray in volume 275, 1928.

There are other subsidiary difficulties which the federal courts had but they’re not of immediate concern to this problem today.

And if Murray case held — this Court there held that the District Court loses power to suspend sentence once the defendant has entered upon the service of his sentence.

And in the language of this Court, it was stated that when any part of the sentence has been served, the District Court loses power to entertain a motion to put it to suspend sentence and grant probation.

Felix Frankfurter:

Is that a case like this?

John V. Lindsay:

It was not, Mr. Justice.

The Murray case had came up — it was two cases as counsel has pointed out.

One concerned a — a sentence for 14 years and 9 months and the application for probation was presented to the District Court four years later.

It actually was a case involving consecutive terms, but it was not argued, presented, or decided by this Court on that basis.

The Cook case incidentally, which was the companion case decided by the Court at the same time, involved a sentence for three months.

And one day after the incarceration, the prisoner came to the Court and asked to have his sentence suspended and probation granted and the Court, as counsel has pointed out, granted the motion.

But the basis for the holding of the Court in the Murray case, which again was concerned with the 1925 statute prior to the 1948 revision of the Criminal Code is important.

Three points stand out.

“One,” said to this Court, “The reason for the Probation Act was this, was to grant to young and new first violators of the law a chance to reform and to avoid the contaminating influence of association with hardened criminals at the time of the sentence.”

Avoidance at the time of the sentence was the key that was expounded to the Congress by the proponents of the legislation at the time it was passed.

And indeed, that was the background against which the legislation was passed.

“Secondly,” said this Court, “Congress could not have intended in passing this legislation to require the District Court, days, months, indeed years later to entertain applications for suspension of sentence and probation after the prisoner has been turned over to the Attorney General for custody and has commenced his — his service.”

Thirdly, Congress and this is related to point number 2.

“Thirdly,” said the Court in the Murray Case, “Congress could not have intended an overlap with the resulting conflicts that would occur between the operation of the probation of the parole statute which even then provided for parole after one-third of the aggregate sentence and the application of the good time statutes — the credit for good conduct, which is given to prisoners.

On the one hand, and indeed of course, the power of clemency which is always available, the presidential power of clemency, those on the one hand and the judiciary on the other hand.

Now, the Government submits that the reason and logic set forth by this Court in the Murray case is equally — applies with equal force and vigor under the 1948 revision to the Probation Act of the code of — and indeed to the instant case.

Well, the 1948 revision did only two things to the 1925 Act.

First, it changed the initial language that after conviction or plea of guilty or nolo contendere, the District Court may suspend sentence and grant a probation, it changed that to read upon entering judgment of conviction.

Now, the Reviser’s Notes do not indicate that there was any substantive change intended.

The Reviser’s Notes only indicate this, that the change in language was made because the excess language was dropped as unnecessary, said the revisers.

Now, it is submitted that in the absence of substantive change, that the Reviser’s and the Congress must have known the construction that have been placed upon the Probation Act by this Court in the Murray case.

And indeed, if anything, the use of the word upon indicates a more stringent application of the use of probation than had been prior to — than have been the case before this.

Well, you think even under this statute, the Murray case is still good law, the judge can do it anytime up to the commencement of service of sentence?

John V. Lindsay:

I do, Mr. Justice.

Now, the second change that was made in the — by the Revisers were these.

John V. Lindsay:

That an additional sentence was inserted which ran as follows.

That probation may be limited to one or — or more counts or indictments but that in the absence of a specific limitation, it shall extend to the entire sentence, singular, and judgment.

Now, the Reviser’s Notes indicate, in that respect only this.

That that change or addition reflected the existing practice in the federal courts which was true.

This Court, in two decisions in volumes 302 and 303 had approved the practice of — at the time of judgment, at the time of sentencing, of sentencing, of sending a man to jail on some counts and granting probation — suspending sentence and granting probation on other counts and the same with respect to multiple indictments tried together.

So those two questions were settled.

And what the Reviser’s Notes indicated was correct that existing practice was being confirmed.

Now, Judge Sanborn in the Phillips case — the Phillips case and the Affronti case and instant case come up from the Eighth Circuit in which the Government argues is the correct rule of law.

And I should add too that the Eighth Circuit is supported by the very articulate opinion of Judge Dobie in the Fourth Circuit.

Judges Parker and Soper going along with him which in turn is based in large part on the excellent opinion of Judge Chestnut in the court below.

Those two Circuits argue this way in substance.

That the Probation Act is not an isolated act.

That at the time of the revision of the code, the Revisers intended a comprehensive and orderly revision of all of the statutes relating to crime and criminal procedure.

And then it could not have been the intent of the Congress at that time to upset the construction that have been placed on the 1925 Act by this code which clearly enunciated the desirability of having a division between the Judicial Branch of the Government and the Executive Branch of the Government when it comes to the business of modification or reorganizing a sentence of a man who is in the custody of the Attorney General.

Felix Frankfurter:

I don’t — I don’t quite see how that argument had to this kind of a situation.

Certainly, I don’t see what the argument in this expression, executive confines of conflict that cuts the clause saying that they should give separate sentences and the sentence number two is to run — is to begin to run after sentence number one has expired.

You haven’t entered upon that sentence.

In other words, I should like to tell you before you sit down, why do you think that this is a question of reading?

This statute in the matter of reading English or whether they have entered upon the constructions, one’s attitude towards the probation statute.

John V. Lindsay:

I think —

Felix Frankfurter:

I can — I can understand —

John V. Lindsay:

— I think both.

Earl Warren:

— one view or the other.

John V. Lindsay:

I think both, Mr. Justice.

First of all, if you read the statute, the statute says that the executed — the imposition or the execution may be suspended with respect to one or more counts or indictments.

But then in the absence of any expressed limitation, shall extend to the entire sentence in the singular.

The statute nowhere talks in terms of sentences.

It talks in terms of counts or indictments.

Felix Frankfurter:

That’s why I think — looking for the intention of Congress and looking for the black cat, and is all through when the black cat isn’t there.

John V. Lindsay:

Possibly —

Felix Frankfurter:

It’s more on the question —

John V. Lindsay:

Possibly so.

Felix Frankfurter:

(Voice Overlap) intention of Congress.

John V. Lindsay:

Possibly so.

I think in the absence of legislative history, it’s — it’s probably —

Felix Frankfurter:

All right.

John V. Lindsay:

— permissible to turn to the statute.

Felix Frankfurter:

Now, how did that (Voice Overlap) that contemplate in this kind of a situation?

John V. Lindsay:

I believe that they did contemplate this kind of a situation and I’ll give you further reasons for that.

Felix Frankfurter:

Is it in the legislative history?

John V. Lindsay:

Not in legislative history.

Felix Frankfurter:

All right.

John V. Lindsay:

I’ll say that —

Felix Frankfurter:

Then we haven’t got anything from Congress except — except this Act was — the duty weave this Act in conformity or in harmony with other acts.

John V. Lindsay:

And you have this too, Mr. Justice, which is to say, that — that if substantive change had been intended —

Felix Frankfurter:

I don’t (Voice Overlap) —

John V. Lindsay:

The Reviser’s Notes would have — would — would have stated as much.

Felix Frankfurter:

I thought but I don’t think 1948 made any changed.

I’m talking about the construction referring to that.

John V. Lindsay:

Apart from the legislative history that I’ve given you as to the desirability of probation at the time of the sentence, we don’t get any help.

Now there, that’s the key, really.

Felix Frankfurter:

And will be entirely deciding the 1948, of this Act, I get nothing.

Earl Warren:

Mr. Lindsay, many of the States of the union have had a longer experience with probation than the Federal Government itself.

I wonder, as far as you know if there is anything in the statutes or the general practice in the various States on probation that would indicate the probation system is in spirit different from anything you would have indicated here?

John V. Lindsay:

Well, the — the practice of all of the Sates with the exception of one, State of Tennessee, have probation statutes.

Even Tennessee has one with respect to juveniles.

There is a great difference in their application and I can’t — I can’t answer your question absolutely directly.

I can’t tell you that in New York, the statute is much the same as the federal statute.

And although I don’t believe there are any cases directly on this point here from a reading of the statute, which terms — which speaks in terms of commencement of imprisonment, which is the cutoff date, the same result would follow unless he would doubt the theory that is advanced by the petitioner here that you’ve got entirely separate and distinct sentences when you have a multiple count sentence.

Earl Warren:

Yes.

Earl Warren:

Well, what I — what I was getting at, do you know of any — any States, I do not, where a judge can sentence a man to prison then at the end of five years or so, give him probation?

John V. Lindsay:

I do not.

Earl Warren:

There may be — I don’t —

John V. Lindsay:

I do not.

Earl Warren:

I don’t know.

John V. Lindsay:

I do not.

I do know that in —

Felix Frankfurter:

Not on this case.

Earl Warren:

I thought it was.

Felix Frankfurter:

Not on this case.

You can’t give probation for the sentence unless the Government began giving probation for the sentence to preserve it.

John V. Lindsay:

That — that is the — the entire theory of the petitioner’s argument.

Felix Frankfurter:

(Voice Overlap) —

John V. Lindsay:

I’ll concede that.

Felix Frankfurter:

All I’m saying is that is different from anything we’ve go for that.

I’m not stating you’re not right.

John V. Lindsay:

That this Court has had.

That is correct.

Felix Frankfurter:

That’s a part of it.

John V. Lindsay:

That is correct.

Felix Frankfurter:

And I’m suggesting —

John V. Lindsay:

I’ll concede that.

Felix Frankfurter:

— that the practice of probation in the Federal Government until that part of United States came along as longer than the States had, mostly.

Because of our statute, the federal courts up to the (Inaudible) case, have been exercising this function as a matter of inherent or prior to the Court —

John V. Lindsay:

That is correct.

Felix Frankfurter:

— for decades.

The first in 56 years and this Court said, something that has been in practice in the courts for 56 years but beyond their power.

John V. Lindsay:

That is correct.

I — I think that the State of Massachusetts too had been following a — a rule of laying the case on the file as they call it, which has amounted to suspension.

Earl Warren:

I think you would still find, Mr. Lindsay, though that many States have had — it may deal more experience with probation on the Federal Government.

John V. Lindsay:

I think that that may well be so.

I have in the — I — I do know that in the State of California that there is no — there is no power in the part of the judge to — to later use, to reach back and make an adjustment in the sentence.

Felix Frankfurter:

I — I rejected — he surrendered under a relatively used, the number of criminal prosections in the federal courts as very (Inaudible) as compared to the long — the whole range of criminal prosecutions in the States, that’s also.

John V. Lindsay:

I don’t argue —

Felix Frankfurter:

Conclusive there is that for perhaps 50 years prior to the part of United States, probation was exercised by federal judges in severe crimes as a matter of inherent jurisdiction, deemed to be part of the function of courts.

John V. Lindsay:

That is right.

And the decision of this Court —

Felix Frankfurter:

But then along came — then along came at the part of United States.

John V. Lindsay:

Which was a great —

Felix Frankfurter:

I think —

John V. Lindsay:

— shock to people when it came.

Felix Frankfurter:

I can assure you I can feel it under the shock.

Then came the statutes that we’re now construing.

I throw out the 1948 amendment.

I don’t think that attaches.

I do say that they have a new question here that is not to be answered by any of the prior decisions or by the language into it.

John V. Lindsay:

Well now, let me give you some additional reasons as to why I think that not only that the Murray case controls on this new statute but as to why it should control.

And I think that was the second half —

Felix Frankfurter:

(Voice Overlap) —

John V. Lindsay:

— the second half of the original question.

Felix Frankfurter:

— but I think a serious question.

John V. Lindsay:

In this Phillips case, which is really the key leading decision, parole had already been denied the applicant at the time that the trial judge turned down his application for suspension and probation.

In the Mann case which was the lower court decision of Judge Chestnut, which was subsequently approved by Judge Dobie in the Court of Appeals for the Fourth Circuit.

There had been three prior applications to the District Court.

And in both cases, the Court stress this.

That it is the Executive Branch of the Government exclusively that has supervision of the prisoner, that has the skills at its command to measure the extent of rehabilitation.

And then every single one of the cases where an application has been brought to the District Court, the affidavits of the prisoner and the argument of counsel has always been this.

That the prisoner, while in prison, while in custody, has — has shown such a remarkable degree of improvement and rehabilitation or is otherwise been of service to the Federal Government in other respects that he is now deserving and that the original sentence was too harsh or something else.

And I — I have — submit that the chief difficulty with the — the chief difficulty in the practical basis where the argument that is advanced by the petitioner that you can take a consecutive count sentence and divide it up into separate sentences, separate terms is this.

Is that therefore, in later years, the exercise of the power of suspension and probation will depend entirely on the phraseology used by the trial judge in sentencing the man.

John V. Lindsay:

It’s conceded by the petitioner in his brief — in — in his brief, I think, that the trial judge and indeed this is the argument that was used in the Eighth Circuit and Fourth Circuit as well.

That the trial judge can sentence any one of a number ways.

He can take the entire amount permissible.

Take the series of counts and add them all together and then put it in the judgment in terms of the general sentence or something less than that.

Or he can divide it up into terms, into counts and sentence into a separate terms and — and order some to run concurrently and some to be consecutive or the whole bunch can be concurrent.

Felix Frankfurter:

But Mr. Lindsay, I have to have a prejudice arising — arising there.

If I may say so, this argument of yours is full of flaw.

What you’re saying is that a judge has the discretion if a man is convicted on five counts or five indictments or probably.

Or we can — may give on each count, on each sentence or each indictment five years.

He may do that concurrently or he may do that consecutively or he may give a maximum or the intervening theory.

Well, what kind of an argument is this that this would cut into that power if you have that power.

They could have exercised it before the sentence began and the question is whether the bars it, not whether he had with the power which we say here, of course, he had.

Where is that now?

John V. Lindsay:

Why should — why should the district judge at 20 years, 15 years later —

Felix Frankfurter:

It’s a question — all I’m saying is, it isn’t the question, of phrasing.

It’s a question of the exercise of discretion.

It’s a question of phrasing.

It’s a question of a determination by him whether the sentence and when he gets to require him, he could have five more years or whether he should have five years in serving.

That is the phrasing.

John V. Lindsay:

I’ll agree with you, Mr. Justice, but my argument is this.

That it doesn’t make any sense to use the artificial device of saying that a sentence, which is no less final because it is — it — it has included in it multiple counts or indictments, is no less final.

It’s artificial to say that you — years later, can divide it up into separate counts and separate sentences, in Colet’s separate sentences.

Felix Frankfurter:

Well I don’t go on the — I don’t go on the compulsions of language and I have to change it.

I’m saying that a judge may decide at the ultimate question.

But although a fellow has committed five hundred executions, he serviced only for one term, if it was.

All he may say —

John V. Lindsay:

25 years.

Felix Frankfurter:

(Voice Overlap) — and then having thought some more about finality, he may say or he’s dead wrong in having him for the 25 year-sentence.

I was dead wrong.

This fellow, I think, begun to serve his second five years and I will now take think it has to be done as a matter of (Inaudible) to serve that sentence.

Felix Frankfurter:

I will now say, I will give him probation which I could have done ab initio.

John V. Lindsay:

No.

Felix Frankfurter:

I’m not saying that argument is reducing.

I’m suggesting to you that you merely ban the words around, we don’t really get to the heart of this problem.

John V. Lindsay:

Well, I think — I — I think that is correct.

But I think that my — my argument is a perfectly permissible one on this score.

And I — I’m not sure — I think you understand — I’m not sure that you understand that if a general sentence for the multi — for maximum amount is imposed, there is no power at a later date to make any adjustment.

Felix Frankfurter:

I agree with you but — but that all goes back to the decision that’s hooked in the Murray case, that once you begin the sentence, one day is too late.

John V. Lindsay:

I hardly agreed and that’s why I say that the real answer to this case here is that the underlying theory and reasons of this Court in the Murray case is the chief difficulty with the proposition that is put to this Court by the petitioner because the same reasons apply.

Now, I — I certainly will not argue at all that there are not weaknesses in the present system, and that it — it would not be desirable that at future date in a particular sentence to have machinery that would give the Executive Branch of the Government the chance to take another look at it particularly where a parole of the man is not eligible for parole.

But I submit that if the — if the proposition which is argued to this Court by the petitioner and this case is adopted, it would create a great deal of more mischief than has ever been — that has been the result in particular cases where there had been hardship of — in sentences or where a man truly has made remarkable adjustment and there should be an adjustment or reorganization of his sentence but the courts are not the bodies to do it.

It requires legislation if it’s to be done and it’s a power which should be exercised by the Executive Branch of the Government and not the judiciary.

Felix Frankfurter:

I don’t think courts are good instrument for imposing sentence myself.

John V. Lindsay:

I’m —

Felix Frankfurter:

That doesn’t — that doesn’t —

John V. Lindsay:

Mr. Justice Frankfurter, I’m not going to quarrel with you on that point of — of that there’s a —

Felix Frankfurter:

All right.

John V. Lindsay:

And I think you would find a lot of support in the Executive Branch of Government for that — for that argument.

Indeed, I think that — that among the leading experts of the probation system of course is the director of administrative office of the courts.

And I think it’s perfectly permissible that — it’s perfectly proper to argue because he has written about it in — in two leading — in two leading articles, one, in the 25th anniversary issue of federal probation published in 1950 and again, in volume 37, I think, of Virginia Law Review has argued very persuasively that probation is not the machinery to use — to tamper with a sentence after a man has been turned over to the Attorney General.

Indeed, he argues this way, that he divorce the practice which was approved in this Court in Fred versus Kelly & Kossman of allowing a split sentence, jailed on some counts, probation on other counts and which was adopted in 1948 by the Congress, although they intended no substitute change.

He deploys that practice because it said that it goes against the original purpose of probation which was to pluck the bland — brand from the burning as this Court said in the Murray case, stop him from going to prison.

And he argues further that the transition between jail and public life can only and best be done the machinery or parole and not by the exercise of the probation statute.

I think that it’s a — it’s perfectly proper to — to argue this two that — that one of the greatest needs in the prison administration is for certainty of sentence.

The director of the Bureau of Prisons will tell you that, although he is the first one to admit that there are hardships under the present cacophony of sentencing in — in this Government.

He will argue that certainly, it’s necessary from the point of view of the management of the prisons so that they can program the man, and certainty is important from the program of the prisoner also so that he can assist in that program.

Now, I would agree that those are — are additional arguments and they don’t — they don’t strike at the construction of the statute but you go right back to the Murray case when you are worrying about how to construe this statute.

And it seems to me that you find the answer in the decision of that Court — of this Court in the Murray case.

For these reasons, I respectfully submit that the decision and judgment of the Court of Appeals for the Eighth Circuit should be affirmed.

Earl Warren:

Mr. Murphy.

Harry F. Murphy:

If the Court please, I see that I can add nothing to what I have said previously.

I think the decision of this Court will go a long ways towards turning up a misunderstanding that exist throughout the country because we have District Courts and unreported cases which we know about or not daily but frequently suspending the execution of sentences yet to be served where the defendants is confined.

We have the conflict between the Ninth and Tenth Circuits on the one hand and the Eighth and Fourth on the other.

So with regard to the outcome of the — the decision of this Court, I think it will be helpful — future administration of judgments.