Warden v. Marrero

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A now-repealed statute, 26 U. S. C. § 7237 (d),1 provided, inter alia, that certain narcotics offenders sentenced to mandatory minimum prison terms should be ineligible for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 TJ. S. C. § 4202.2 Section 7237 (d) was repealed, effective May 1, 1971, 84 Stat. 1292, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which makes parole under § 4202 available for almost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States District Court for the Middle District of Pennsylvania, claiming that, since 26 U. S. C. § 7237 (d) had been repealed, he should be eligible for consideration for parole under 18 U. S. C. § 4202 when one-third of his sentence had been served.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 statute 4 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 (1974). We agree with the District Court and reverse the judgment of the Court of Appeals.

Bradley v. United States, 410 U. S. 605, 611 (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]ros-ecutions 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.

I

We hold that § 1103 (a) bars the Board of Parole from considering respondent for parole under 18 TJ. S. C. § 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.

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, 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; see Bell v. Maryland, 378 U. S. 226, 230 (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, at 607-608; 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 the product of legislative inadvertence — Congress enacted 1 U. S. C. § 109, the general saving clause, which provides in pertinent part 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.” See n. 5, supra. The determinative question is thus whether the prohibition of 26 U. S. C. § 7237 (d) against the offender’s eligibility for parole under 18 U. S. C. § 4202 is a “penalty, forfeiture, or liability” saved from release or extinguishment by 1 U. S. C. § 109.11

United States v. Reisinger, 128 U. S. 398 (1888), held that the saving clause’s use of the words “penalty,” “liability,” and “forfeiture” required the conclusion that the clause covered criminal statutes. Those words, the Court found, were “used by the great masters of crown law and the elementary writers as synonymous with the word 'punishment,’ in connection with crimes of the highest grade.” Id., at 402. Thus, the Court agreed with the construction of the clause by Mr. Justice Miller, as Circuit Justice, in United States v. Ulrici, 28 F. Cas. 328, 329 (No. 16,594) (CCED Mo. 1875), that those terms “were used by Congress to include all forms of punishment for crime.” See 128 U. S., at 402-403. In consequence, the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense. See, e. g., Jones v. United States, 117 U. S. App. D. C. 169, 327 F. 2d 867 (1963); United States v. Kirby, 176 F. 2d 101 (CA2 1949); Lovely v. United States, 175 F. 2d 312 (CA4 1949).

Although the general saving clause does not ordinarily preserve discarded remedies or procedures, see Hertz v. Woodman, 218 U. S. 205, 218 (1910); United States v. Obermeier, 186 F. 2d 243, 253 (CA2 1950), the legislative history of § 7237 (d) reveals that Congress meant ineligibility for parole to be treated as part of the “punishment” for the narcotics offenses for which respondent was convicted. Section 7237 (d) was enacted as part of the Narcotic Control Act of 1956. The statute embodied congressional acceptance of the approach that effective combat against the contagion of drug addiction required the imposition of severe penalties for certain narcotics offenses. Congress therefore enacted lengthy mandatory minimum sentences as a means of decreasing both drug addiction and trafficking. See, e. g., S. Rep. No. 1997, 84th Cong., 2d Sess., 5 (1956); H. R. Rep. No. 2388, 84th Cong., 2d Sess., 10 (1956). But Congress believed that longer sentences would not achieve the desired results unless the offender remained imprisoned for his full term.

“In evaluating the effectiveness of the presently prescribed penalties, it must be recognized that special incentives in our penal system serve to decrease the actual time spent in a penal institution under a sentence imposed by a court. The violator is eligible for parole after serving one-third of his sentence. . . . Available data from the Bureau of Prisons, indicates that a narcotics violator actually serves an average of less than two-thirds of the sentence imposed by the court. This mitigation of sentence tends to defeat the purposes of [existing legislation] . . . .” Id., at 10-11.

Accordingly, Congress expressly provided in § 7237 (d) that parole under 18 U. S. C. § 4202 would be unavailable for narcotics offenders.

There are additional reasons for believing that the no-parole provision is an element of respondent’s “punishment.” First, only an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole. See United States v. Ross, 464 F. 2d 376, 379 (CA2 1972); United States v. De Simone, 468 F. 2d 1196, 1199 (CA2 1972). For the confined prisoner, parole — even with its legal constraints — is a long step toward regaining lost freedom.12 An observation made in somewhat .different context is apt:

“It may be ‘legislative grace' for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty.” Durant v. United States, 410 F. 2d 689, 691 (CA5 1969).

Second, a repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the ex post facto clause of Art. I, § 9, cl. 3, of the Constitution, of whether it imposed a “greater or more severe punishment than was prescribed by law at the time of the .. . offense,” Rooney v. North Dakota, 196 U. S. 319, 325 (1905) (emphasis added). See Love v. Fitzharris, 460 F. 2d 382 (CA9 1972); cf. Lindsey v. Washington, 301 U. S. 397 (1937); Holden v. Minnesota, 137 U. S. 483, 491-492 (1890); Colder v. Bull, 3 Dall. 386, 390 (1798); United States ex rel. Umbenhowar v. McDonnell, 11 F. Supp. 1014 (ND Ill. 1934).

Thus, at least where, as in the case of respondent’s narcotics offenses, Congress has barred parole eligibility as a punitive measure, we hold that the no-parole provision of § 7237 (d) is a “penalty, forfeiture, or liability” saved by § 109.

Ill

Respondent emphasizes that Congress completely changed its approach to regulation of narcotics offenses in the 1970 Act, jettisoning the retributive approach of the 1956 law in favor of emphasis in the 1970 Act upon rehabilitation of the narcotics offender. He argues that, in light of this basic change, little purpose iá served by denying respondent eligibility for parole, indeed that such denial frustrates the current congressional goal of rehabilitating narcotics offenders.

Undeniably this argument has force, but it is addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds. See Gore v. United States, 357 U. S. 386, 393 (1958); Bell v. United States, 349 U. S. 81, 82 (1955). Section 1103 (a) of the 1970 Act and 1 U. S. C. § 109 saved from repeal the bar of parole eligibility under § 7237 (d), and, however severe the consequences for respondent, Congress trespassed no constitutional limits.

The judgment of the Court of Appeals is

Reversed.

1 Title 26 U. S. C. §7237 (d) (1964 ed. and Supp. V) provided:

“Upon conviction—

“(1) of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or

“(2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender’s second or subsequent offense,

"the imposition or execution of sentence shall not be suspended, probation shall not be granted, section 4202 of title 18 of the United States Code shall not apply, and the Act of July 15, 1932 (47 Stat. 696; D. C. Code 24r-201 and following), as amended, shall not apply.”

2 Title 18 U. S. C. § 4202 provides:

“A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hundred and eighty days, whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years.”

3 Respondent was convicted of violating 21 U. S. C. § 173 (1964 ed.) and 26 U. S. C. §§ 4701, 4703, 4704 (a), and 4771 (a) (1964 ed.). His sentences were imposed under 21 U. S. C. § 174 and 26 U. S.'C. § 7237 (a). Section 174 explicitly incorporated the provisions-' of 26 U. S. C. §7237 (d), which was directly applicable to the sentence imposed under §7237 (a).

4 Section 1103 (a) provides:

“Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] ... or abated by reason thereof.”

5 Title 1 U. S. C. § 109 provides in relevant part:

“The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”

6 The mandate was issued before the Circuit Justice signed a stay. The stay was treated, however, as staying all proceedings under the mandate. Respondent’s motion to dismiss the writ of certiorari as moot is therefore denied.

7 The Courts of Appeals for the Second and Tenth Circuits have held that narcotics offenders are ineligible for parole. United States v. De Simone, 468 F. 2d 1196 (CA2 1972) (but see United States v. Huguet, 481 F. 2d 888 (CA2 1973)); Perea v. United States Board of Parole, 480 F. 2d 608 (CA10 1973). In addition to the Court of Appeals for the Third Circuit, in this case, the Courts of Appeals for the Fourth, Fifth, Seventh, and District of Columbia Circuits have held that narcotics offenders are eligible for parole. See Alvarado v. McLaughlin, 486 F. 2d 541 (CA4 1973); Amaya v. United States Board of Parole, 486 F. 2d 940 (CA5 1973); United States v. McGarr, 461 F. 2d 1 (CA7 1972); United States v. Marshall, 158 U. S. App. D. C. 283, 485 F. 2d 1062 (1973).

8 Title 18 U. S. C. § 4208 (a) provides:

“(a) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice arid best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.”

9 The statement in Morrissey v. Brewer, 408 U. S. 471, 480 (1972), that “[p] aróle arises after the end of the criminal prosecution, including imposition of sentence” was addressed to the decision determining the time of release on parole as distinguished from the decision determining eligibility.

10 Respondent argues that, since the 1970 Act contains its own saving clause, §1103 (a), that specific directive should be read to supersede the general clause § 109. But only if § 1103 (a) can be said by fair implication or expressly to conflict with § 109 would there be reason to hold that § 1103 (a) superseded § 109. See Great Northern R. Co. v. United States, 208 U. S. 452, 465-466 (1908). We find no conflict.

11 The Court of Appeals, relying on statements in opinions of this Court that § 109 is intended to obviate “mere technical abatement[s],” see Hamm v. Rock Hill, 379 U. S. 306, 314 (1964), held that, since respondent’s conviction and sentence would remain intact even if he were released on parole, the purposes of 1 U. S. C. § 109 would not be served by applying it to save the no-parole provision of 26 U. S. C. §7237 (d). 483 F. 2d 656, 663; see United States v. Stephens, 449 F. 2d 103, 105-106 (CA9 1971). This analysis, it seems to us, begs the relevant question. The no-parole provision of 26 U. S. C. § 7237 (d) was directly incorporated into the sentencing provisions of 21 U. S. C. § 174 and 26 U. S. C. § 7237 (a), see n. 3, supra, and if the repeal of 26 U. S. C. § 7237 (d) can be viewed as mitigating respondent’s punishment under those sections, his conviction and sentence would not be left intact by the repealer and his prosecution would “technically” abate under the common-law rule. Thus, the appropriate inquiry is whether parole ineligibility is a “penalty, forfeiture, or liability” for his offense that survives the repealer.

12 In Morrissey v. Brewer, 408 U. S., at 482, in determining that parole may not be revoked without affording the parolee procedural due process, we observed:

“The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.” (Footnote omitted.)