join, dissenting:
Although I am in substantial agreement with the majority opinion, I cannot agree with that portion of the opinion approving consecutive terms of probation which exceed the five year limit imposed in 18 U.S.C. § 3651. Accordingly, I must dissent from Section V(B) of Judge Garth’s opinion.
18 U.S.C. § 3651 provides in relevant part:
Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
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The period of probation, together with any extension thereof, shall not exceed five years. (Emphasis added.)
Since the plural form, indictments, is used, the statute seems to contemplate situations where a district judge sentences a defendant on several indictments at the same time.
The clear import of the second paragraph is that only one five-year period of probation may be given. The five-year probationary term must extend to the entire sentence so that even if several indictments are consolidated, the limitation is applicable.1 See Fox v. United *738States, 354 F.2d 752 (10th Cir., 1965); United States v. Pisano, 266 F.Supp. 913 (E.D., Pa., 1967).
The majority discounts the applicability of Fox and Pisano correctly noting that those cases dealt not with separate indictments transferred under Rule 20, F.R.Cr.P., but with separate counts of the same indictment. The simple words of § 3651 do not support this distinction, however. § 3651 provides that “[probation may be limited to one or more counts or indictments.” (Emphasis added.) No basis for distinction between separate counts of the same indictment and entirely separate indictments is implied in § 3651. Accordingly, Judge Garth’s conclusion that the Fox-Pisano construction of § 3651 is inapplicable in the “separate indictments” context is, in my view, unwarranted.
Without a shred of support, the majority next concludes that if there had been no Rule 20 transfer “[w]e do not believe that 18 U.S.C. § 3651 would have precluded the Alabama District Court from imposing a five year probationary term, to follow a five year probationary term imposed on petitioner by the District Court in Pennsylvania”.2
There are several problems with this argument. First, although petitioner Lancer requested the transfer, Rule 20 provides that the United States Attorney from each district involved must approve the transfer. Clearly, a Rule 20 transfer is not an independent procedure by which a defendant can frustrate a government plan to impose stringent penalties.
Second, the majority advances no support for its conclusion that § 3651 would have permitted an Alabama district court not only to suspend sentence but also to suspend commencement of probation for five years. If § 3651 authorizes this, it is far less evident to me than the majority suggests.
Third, I do not think the majority’s position is supportable on a policy basis.3 Probation is a form of punishment which abridges a defendant’s liberty. Kore-matsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). Though it is a mild and ambulatory mode of punishment, probation nonetheless results in extending the potential period during which a defendant’s liberty may be restrained. This is necessarily so because once probation is revoked, a defendant may be required to serve his original sentence without credit for the time spent on probation.4 If in addition to imposing consecutive sentences, the district court is allowed to impose consecutive five-year probationary terms, the potential period of restraint may be increased far in excess of the maximum *739sentence to which the defendant is subject.
I find nothing to indicate that this was the intent of Congress. To the contrary, the language and purpose5 of § 3651 clearly suggest that five years of probation is adequate to determine whether a defendant has become sufficiently adjusted and rehabilitated to permit his complete release into society. As the Supreme Court noted in Korematsu, “[probation, like parole, ‘is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency.’ ” 6 Whenever a district court considers a five-year probationary term insufficient the defendant is simply not a “good social risk.” In such a situation imprisonment followed by parole may be a better alternative. To impose consecutive five-year probationary terms, and increase accordingly the potential period of restraint, does not seem compatible with a policy of affording the “unfortunate another opportunity by clemency.”
As such, I believe the district court erred in imposing consecutive probationary terms in excess of five years. I would therefore void the excessive portion of the probationary term.
. I cannot accept the apparent view of the sentencing court in this case 1) that consecu-five probationary periods, exceeding five years in total duration, may be imposed for each offense comprising the court’s “entire sentence and judgment” and 2) that for this purpose, “offense” should be equated with “indictment.”
The word “offense” is used in § 3651 only for the purpose of defining the types of offenses for which the court can grant probation (i. e., “any offense not punishable by death or life imprisonment” 18 U.S.C. § 3651). Used in this sense, “offense” cannot *738be equated solely with “indictment”; separate counts of a multiple count indictment may each involve separate “offense[s] not punishable by death or life imprisonment.” E. g., Fox v. United States, 354 F.2d 752 (10th Cir., 1965). Cf. Fed.R.Crim.P. 8(a) which permits (although does not require), in certain situations, two or more offenses to be charged in the same indictment.
More importantly, however, the mere fact that § 3651 defines the type of “offense” for which probation may be granted, does not permit the inference that consecutive probationary terms, exceeding five years in total duration, may be imposed for each offense, especially when such inference would be inconsistent with the language of § 3651 quoted in the text. Cf. Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943) (provisions of the probation statute must be read together in a consistent fashion).
. Majority Opinion at pp. 735-736, supra.
. . Majority Opinion at p. 736, supra. Although the majority opinion addresses policy issues identical to those raised here, it feels bound by current law to reach a result other than that dictated by sound policy considerations. No support for the majority’s reading of the law is advanced, however. Since the issue is clearly one of first impression, I think the statute should be read to reach a sensible result which is consistent with the purpose of probation cited here in the text and infra, n. 5.
. This has been held not to offend double jeopardy. E. g„ United States v. Fultz, 482 F.2d 1 (8th Cir., 1973) and cases cited therein.
. For a discussion of the history of the Probation Act see United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 72 L.Ed. 309 (1928); Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282 (1937); Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 88 L.Ed. 41 (1943).
These cases imply that the purpose of probation is to prevent unhardened offenders from being contaminated by contact with criminal elements encountered in prison. Probation is not intended to give a judge supervisory powers over the defendant for an indefinite period of time. Judges are ill-equipped to deal with the day to day management of too many offenders. The intent of probation is rather to give the judge a time period in which to assess the likelihood that this defendant can be rehabilitated without prison. This purpose is thwarted, in my view, by consecutive probationary terms.
. Korematsu v. United States, 319 U.S. at 435, 63 S.Ct. at 1126, citing Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S.Ct. 872, 82 L.Ed. 1399 (1938).