On July 26, 1940, the relator, Elmer Banks, was sentenced to the Delaware County prison for a term of not less than one nor more than two years from June 15, 1941 (which was the date of expiration of another sentence for violation of a previous parole), and to pay a fine of $100 and costs. On June 15, 1942, the court directed that he be paroled upon payment of the fine and costs, but defendant, the keeper of the prison, refused to release him because, on June 2, 1942, the Pennsylvania Board of Parole had ordered that he should be paroled on December 15, 1942. Banks obtained a writ of habeas corpus and the court, being of opinion that the Act of August 6, 1941, P. L. 861, which created the Pennsylvania Board of Parole, was unconstitutional, ordered his immediate release on parole as it had previously directed. The District Attorney of Delaware County has appealed on behalf of defendant; the Attorney General also has entered his appearance.
The act in question, which became effective on June 1, 1942, provides for the establishment of a uniform and exclusive system for the administration of parole in Pennsylvania. It creates an independent administrative board with exclusive power to parole and reparole, to commit and recommit for violations of parole, and to *Page 584 discharge from parole all persons theretofore or thereafter sentenced by any court in the Commonwealth to imprisonment in any penal institution of the State or of a county. The powers and duties of the board do not extend to persons sentenced for a maximum period of less than two years; as to such persons the courts retain their present powers of parole. Neither is the board given any authority over convicts condemned to death or serving life imprisonment. The board's power to parole may not be exercised in any case before the expiration of the minimum term of imprisonment fixed by the court in its sentence. The act does not apply to persons committed to houses of refuge for boys or girls, institutions for the discipline or correction of juveniles, or persons imprisoned under sentence by an alderman, justice of the peace or magistrate, or committed in default of payment of any fine or of bail.
The constitutionality of this statute is attacked on two principal grounds. The first is that it infringes upon the power of the Governor to grant commutations of sentence and pardons (Article IV, section 9). There is no novelty in this contention; it has been made many times in the courts of other states in which parole systems are administered by boards or prison managers, and has been rejected in practically all jurisdictions.1 There is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal *Page 585 disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense: Diehl v. Rodgers, 169 Pa. 316, 319, 32 A. 424, 425;Commonwealth v. Quaranta, 295 Pa. 264, 273, 145 A. 89, 93;Commonwealth v. House, 10 Pa. Super. 259, 264, 265. A parole, on the other hand, does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution. Neither is a parole a commutation of sentence within the meaning of that term in the constitutional provision. When our present constitution was adopted, parole, as a penological expedient, was unknown to American jurists and legislators,2 and "commutation" was then generally understood as meaning a reduction in the length of the sentence, effecting a discharge of the prisoner without any further supervision over him by the state authorities.3 The constitutional power of the Governor to grant pardons and commutations of sentence is exclusive, so that the fact that the legislature has, by various statutes, given the power of parole to the criminal courts,4 to the *Page 586 board of managers of the Industrial Reformatory at Huntingdon,5 and to the board of trustees of the State Industrial Home for Women,6 indicates that parole has never been considered as being within the category of either pardon or commutation. The courts in other states have held that a parole is not a commutation as that term is employed in their respective constitutions.7
The other main attack on the constitutionality of the act is directed to its alleged violation of Article V, section 1, which provides that the judicial power of the Commonwealth shall be vested in the various courts therein named and in such other courts as the General Assembly may from time to time establish. It is urged that the granting of a parole is a judicial function and therefore the power to parole cannot be entrusted to an executive or administrative body. This contention also has been uniformly rejected in other jurisdictions,8 where the constitutionality of statutes has been sustained vesting the power of parole in state boards (which now exist in some form or other in at least half of the states of the Union) or in boards of prison commissioners or managers *Page 587 of reformatories.9 The power to grant paroles is not inherent in courts; Pennsylvania courts never had such power until it was given to them by the Act of June 19, 1911, P. L. 1059, and then only with respect to prisoners in county jails and workhouses. What the legislature thus gave it can take away again in whole or in part and vest in some other agency of government. The legislature has exclusive power to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime. It can provide for fixed penalties or grant to the courts such measure of discretion in the imposition of sentences as it may see fit. It may enact that prison confinement shall be the punishment for crime or may abolish prisons altogether and adopt some other method of enforcing the criminal law. It may therefore establish a parole system by which prisoners shall, under certain conditions, be allowed to re-enter society through a gradual amelioration of their restraint and a substitution of controlled freedom for continued incarceration. The granting of parole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the legislature to non-judicial agencies. What parole statutes give to the paroling authorities — in the present instance to the State Board of Parole — is in effect nothing more than the fact-finding duty of determining in each case when the conditions prescribed by the legisture for provisional release from confinement have been complied with, and that duty may properly be placed in charge of an administrative tribunal as is so commonly done in other fields of governmental administration. It was well said in State v. Page, 60 Kan. 664,668, *Page 588 57 P. 514, 516: "It is not . . . an interference with judicial authority, nor an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge's sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it it is not an assumption of judicial power for an administrative officer, acting within the law and the terms of the sentence, to take upon himself the task of ascertaining whether the conditions have been observed." While the court determines the guilt or innocence of the accused and pronounces upon the guilty the penalty provided by law,10 the manner of executing the sentence is prescribed by the legislature, to be put in force and effect by administrative officers.
The exercise of the power of parole being but an administrative function which does not impinge upon the judicial power of sentencing the accused in conformity with the law, it follows that the present act may constitutionally be applied to cases where sentences were imposed before its effective date. The sentence is in no wise interfered with, especially since the act provides that a parole cannot be granted until the expiration of the minimum term prescribed by the court. The parolee is not discharged, but merely serves the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the "trusty" or "honor" system of prison discipline. "The parole authorized by the statute does not suspend sentence or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term. . . . While *Page 589 this is an amelioration of punishment, it is in legal effectimprisonment": Anderson v. Corall, 263 U.S. 193, 196. (Italics supplied.)
It is only if the duration of the sentence is not affected that a parole does not infringe upon judicial power; therefore we are of opinion that the portion of section 21 which attempts to give to the board the power to extend the period of parole beyond the maximum term imposed by the sentence, and section 24 which attempts to give to the board the power to discharge a parolee before the expiration of the parole period, are unconstitutional. The fixing of the term of the sentence is exclusively a judicial function. In Commonwealth ex rel.Johnson v. Halloway, 42 Pa. 446, it was held that a board of prison inspectors could not be vested by the legislature with the power to commute sentences, that is, to shorten the term, as such power would interfere with that of the judiciary.11 The Board of Parole, therefore, cannot discharge a convict from parole before the expiration of the maximum term for which he has been sentenced, nor, on the other hand, extend the period of parole beyond that time.
Much attention was devoted by the court below to the possible effect of the act on cases where fines or costs of prosecution are imposed as part of the sentence. But the law in regard to fines and costs is not affected by the act; in section 31 it is specifically provided that the act shall not apply to persons committed in default of payment of any fine. The Board of Parole is given no authority concerning the payment of fines and costs, although, of course, it may, if it so desire, make such payment a condition precedent to the granting or the continuance of a parole. Article IV, section 9, of the Constitution gives to the Governor the power to remit fines,12 and there is *Page 590 no legislation granting such power to any other authority, not even to the courts; there are, however, many acts, beginning with the earliest years of the Commonwealth, which permit the release from imprisonment, on certain conditions, of persons who have served their terms and remain in confinement only because of failure to pay fines or costs of prosecution;13 indeed, some of these acts authorize the board of prison inspectors to discharge a prisoner without the payment of fines or costs and even without proceeding under the insolvent laws, if, in the judgment of the board, he is unable to make payment.14 Such a release from imprisonment does not, of course, remit the fine, and the Commonwealth may still recover it by execution process from whatever property the prisoner may possess. Paroles, as heretofore granted by the courts or other authorized agencies, have never been regarded as interfering with the enforcement of the payment of fines, and the power to parole has uniformly been exercised without relation thereto. If the parolee does not liquidate the fine or costs which have been imposed upon him, he is still subject, just as before the passage of the present act, to all existing laws for the enforcement of that portion of his penalty; in order to release himself from such obligation without actual payment he must obtain a remission of the fine *Page 591 from the Governor, or take the benefit of the insolvency laws after serving such additional period of confinement as is prescribed by existing laws, or avail himself of the procedure provided by other legislation which may be applicable to his particular case.
The theory of parole is that, instead of an inflexible system of continued imprisonment for all malefactors, it is better to allow some governmental agency, made up of persons presumably qualified for the purpose, to prescribe, in some instances and at some stage of the process of punishment, appropriate individualistic treatment for the rehabilitation of criminal offenders and their restoration to normal life in the community. The present statute proceeds on the theory that this can be better done, and the object more effectively accomplished, by entrusting the operation of the parole system to a state board the members of which shall be obliged to devote all their time and attention to the task. With the wisdom of that policy the court is not concerned. The sole question presented to us is that of the validity of the act.
The order and decree of the court below is reversed, and the record is remitted with directions to dismiss the writ of habeas corpus and remand the relator.
1 People v. Hale, 64 Cal. App. 523, 222 P. 148; People v. Joyce,246 Ill. 124, 92 N.E. 607; Miller v. State, 149 Ind. 607,49 N.E. 894; Ware v. Sanders, 146 Iowa 233, 124 N.W. 1081; Statev. Page, 60 Kan. 664, 57 P. 514; George v. Lillard,106 Ky. 820, 51 S.W. 793; Board of Prison Commissioners v.DeMoss, 157 Ky. 289, 163 S.W. 183; State ex rel. Bottomly v.District Court, 73 Mont. 541, 237 P. 525; Ex parte Marlow,75 N.J.L. 400, 68 A. 171; In re Court of Pardons, 97 N.J. Eq. 555,129 A. 624; State v. Peters, 43 Ohio St. 629, 4 N.E. 81; Woodsv. State, 130 Tenn. 100, 169 S.W. 558.
2 The system of parole was introduced in America in the Elmira Reformatory, which was created in 1869 but not opened until 1876. It was first adopted in an American prison in 1884 in Ohio. It did not come into general use in the American prison system until the decade of the nineties. It made its initial entrance into Pennsylvania when the Huntingdon Reformatory was organized in 1887, and it was not adopted in our state penitentiaries until 1909 or in our county jails until 1911.
3 The first commutation act in Pennsylvania was that of May 1, 1861, P. L. 462, which was held unconstitutional inCommonwealth ex rel. Johnson v. Halloway, 42 Pa. 446.
4 Act of June 19, 1911, P. L. 1059.
5 Act of April 28, 1887, section 6, P. L. 63; Act of June 6, 1893, P. L. 326.
6 Act of July 25, 1913, section 19, P. L. 1311.
7 State v. Duff, 144 Iowa 142, 122 N.W. 829; Ex parte Patterson,94 Kan. 439, 146 P. 1009; George v. Lillard, 106 Ky. 820,51 S.W. 793; State ex rel. Bottomly v. District Court, 73 Mont. 541,237 P. 525; State v. Peters, 43 Ohio St. 629, 4 N.E. 81.
8 Sims v. Rives, 84 F.2d 871, 879 (cert. den.298 U.S. 682); George v. People, 167 Ill. 447, 47 N.E. 741; People v.Joyce, 246 Ill. 124, 92 N.E. 607; People v. Roth, 249 Ill. 532,94 N.E. 953; People v. Mikula, 357 Ill. 481, 192 N.E. 546;Miller v. State, 149 Ind. 607, 49 N.E. 894; State v. Page,60 Kan. 664, 57 P. 514; George v. Lillard, 106 Ky. 820,51 S.W. 793; Commonwealth v. Brown, 167 Mass. 144, 45 N.E. 1; Wallacev. State, 91 Neb. 158, 135 N.W. 549; Ex parte Marlow, 75 N.J.L. 400,68 A. 171; State v. Peters, 43 Ohio St. 629, 4 N.E. 81;Woods v. State, 130 Tenn. 100, 169 S.W. 558; Cohn v.Ketchum, 17 S.E.2d 43 (W.Va.).
9 George v. People, 167 Ill. 447, 47 N.E. 741; Miller v. State,149 Ind. 607, 49 N.E. 894; Ware v. Sanders, 146 Iowa 233,124 N.W. 1081; State v. Page, 60 Kan. 664, 57 P. 514; Board ofPrison Commissioners v. DeMoss, 157 Ky. 289, 163 S.W. 183; Exparte Marlow, 75 N.J.L. 400, 68 A. 171; People v. Adams,176 N.Y. 351, 68 N.E. 636; State v. Peters, 43 Ohio St. 629,4 N.E. 81; Woods v. State, 130 Tenn. 100, 169 S.W. 558; Cohn v.Ketchum, 17 S.E.2d 43 (W.Va.).
10 "The pronouncing of a sentence is undoubtedly a judicial act, but the punishment which the sentence pronounces comes from the law itself. As Blackstone truly expressed it, . . . 'The court must pronounce that judgment which the law hath annexed to the crime' ": State v. Dugan, 84 N.J.L. 603, 89 A. 691, 694.
11 The Constitution of 1838, Article II, section 9, in force when the Halloway case was decided, did not give to the Governor the power to grant commutations.
12 Query, whether this power is exclusive in view of the provision of Article III, section 7, that the General Assembly shall not pass any local or special law remitting fines.
13 For example: Act of March 27, 1789, section 4, 2 Sm. L. 482; Act of September 23, 1791, section 12, 3 Sm. L. 37; Act of January 17, 1831, P. L. 12; Act of June 16, 1836, sections 47, 48, P. L. 729; Act of January 24, 1849, section 6, P. L. 676; Act of April 18, 1857, P. L. 253; Act of May 6, 1887, P. L. 86; Act of June 4, 1901, section 6, P. L. 404; Act of May 6, 1915, P. L. 266.
14 The Act of January 17, 1831, P. L. 12, gave such authority to the boards of inspectors of the state penitentiaries (seeCommonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 325,142 A. 317, 318), and the Act of April 18, 1857, P. L. 253, extended the same authority to the board of inspectors of the Philadelphia county prison. Similar acts were passed as to other counties of the State, for example, the Act of March 22, 1871, section 2, P. L. 435, relating to Delaware County, and the Act of May 10, 1871, section 3, P. L. 706, to Northampton County.