Cardisco v. Davis, Warden of State Prison

64 P.2d 216, 91 Utah 323, 1937 Utah LEXIS 11

• Court: Utah Supreme Court
• Decided: January 4, 1937
• Docket: Nos. 5853, 5854.
• Status: Published

Opinions

MOFFAT, Justice.

Upon petitions filed by Mike Cardisco and Harry Edwards, writs of habeas corpus were issued directing R. E. Davis, Warden of the Utah State Prison, to appear before this court with the prisoners at a time specified. The orders contained in the writs were complied with, and at the date specified the warden filed' his return to each of the writs.

Upon stipulation of the parties the cases were consolidated for presentation and argument. Each case raises the same questions of law. For the purpose of this opinion what is said herein applies to both cases unless, otherwise indicated.

Mike Cardisco alleges that he is unlawfully restrained of his liberty by the Warden of the Utah State Prison by reason of the fact that he has earned nine months’ reduction of time under the “good behavior” statute (Rev. St. 1933, 67-0-10, 67-0-11), and that, when the “good conduct time” is deducted from the maximum time fixed by the trial judge under the “indeterminate sentence” statute (Rev. St. 1933, 105-36-20), his term has expired and he is entitled to his release.

Except for differences of offense charged, duration and dates of sentence and amount of good conduct time claimed to have been earned, the case of Harry Edwards is identical; that is, the same questions of law are presented. Without subdivision into elements of analysis of the legal problem, there is but one question for consideration, viz.: Has the State Board of Pardons entire control over the time a prisoner sentenced under the indeterminate sentence law shall serve under the maximum fixed by law? In another form, the question may be stated thus: Is it mandatory upon the State Board of Pardons to apply to each convict sentenced to a term less than life the “good conduct time” allowance, if the prisoner has not been guilty of a breach of any of the rules of discipline of the prison during the period of service under the sentence? This last question unfortunately contains an assumption as to the status of the so-called “good conduct time” státute not imposed by the first question.

Counsel for the Warden submits both questions as one connected by the alternative “or,” while counsel for petitioners subdivide the matter into five propositions for which they contend, viz.: (1) There is no inconsistency between the indeterminate sentence statute provisions, and the good conduct time deduction statute; (2) that, without a record being kept and a forfeiture of good conduct time, petitioners are entitled to the allowance which the Warden cannot forfeit; (3) that the rule of statutory construction is as follows : “When the provisions of a statute are susceptible of two constructions, one of Which gives effect to all of its provisions, and one of which does not, that construction should apply which permits all of its provisions to stand in force”; (4) that the rule of statutory construction just quoted applies to petitioners’ cases; (5) that the statute providing for allowance for good behavior, or the so-called “merit system,” whereby prisoners are allowed credit for “good time,” is mandatory upon the Warden and the State Board of Pardons.

We are of the opinion that the State Board of Pardons has the jurisdiction and1 power to fix and determine the time a person shall serve when sentenced under the indeterminate sentence law at any period equal to or less than the maximum penalty provided by law. As thus stated, there is but one question for discussion. In arriving- at this conclusion, we are conscious that the disciplinary and administrative policies of the Board! of Corrections, the Warden of the State Prison, and the State Board of Pardons, is of the utmost importance. By the terms of the indeterminate sentence law the Legislature intended to interpret and make more effective the provisions of the State Constitution to carry forward' as far as possible the constitutional powers placed in the hands of the State Board of Pardons relating to the administrative details as to the remission of fines and forfeitures, the commutation of punishments, and the granting of pardons after convictions. In territorial days the laws of Congress relating to Utah provided that the Governor “may grant pardons and reprieves, and remit fines and' forfeitures, for offences against the laws of the Territory.” Comp. Laws Utah 1888, vol. 1, p. 51, § 1841. Upon the adoption of the State Constitution this power was vested in the Board of Pardons, a body created by the State Constitution. Const. Utah, art. 7, § 12. Since the adoption of the State Constitution, the ideas and attitude of those concerned with prison administration as to the purposes of incarceration, the rules and disciplinary regulations, the methods for reforming prisoners, and what constitutes paying the penalties imposed after convictions have materially changed. The limitations and restrictions adopted by the Board of Pardons relating to matters of supervision, parole, and reformation of those convicted of crime have acquired an enlarged and different meaning. The ideas of “retributive justice and vindictive punishment” have been modified. Rehabilitation and reformation have acquired greater emphasis. The powers vested in the Board of Pardons have contributed to make this possible. Courts should not interfere with those upon whom these powers have been conferred nor with the discharge of the duties imposed, unless it clearly appears that they have exceeded the authority conferred. The framers of the Constitution and the people who adopted it saw fit to vest questions of judgment as to reformation, rehabilitation, and fitness to carry and discharge social responsibilities following conviction and incarceration of prisoners in the State Board of Pardons. Prison discipline is for the Warden of the State Prison and the Board of Corrections. Treatment of a prisoner is an individual problem, and should be more responsive to the particular case. Handled in such manner, the work may be more effective than can be provided by general legislative action. Each prisoner is an individual problem notwithstanding the necessity of general administrative rules.

Article 7, § 12, of the Constitution of Utah, among other things, provides:

“Until otherwise provided by law, the Governor, Justices of the Supreme Court and Attorney-General shall constitute a Board of Pardons, a majority of whom, including the Governor, upon such conditions, and with such limitations and restrictions as they deem proper, may remit fines and forfeitures, commute punishments, and grant pardons after convictions, in all cases except treason and impeachments, subject to such regulations as may he provided by law, relative to the manner of applying for pardons.”

The power to parole prisoners is included within the power to “remit fines and forfeitures, commute punishments, and grant pardons.” No reference is made in the Constitution of Utah to parole. The word “parole” is not found in the Constitution.

Section 67-0-7, R. S. Utah 1933, in part, reads:

“The board of pardons may permit any prisoner who is now or may hereafter be imprisoned in the state prison, or any county jail, to go on parole outside of the prison buildings and other inclosures.”

And section 67-0-8, R. S. Utah. 1933, relating also to the status of a parolee and1 the power of the board to control or retake and reimprison one on parole, provides:

“A prisoner while on parole shall remain in the legal custody and under the control of the warden, or the sheriff of the county from which the prisoner was paroled, as the case may be, and the hoard of pardons; and shall be subject at any time to be taken back to the institution from which he was paroled. Full power to retake and reimprison any convict upon parole is hereby conferred upon the board, whose written order, certified by its secretary, shall be a sufficient wa'rrant for all officers authorized to make arrests, or other persons named therein, to return to actual custody any such prisoner.”

The two sections of the statutes just referred to relating to parole are within the constitutional grant of power to remit fines and forfeitures, commute sentences, and pardon prisoners. Under the powers vested by the Constitution of Utah in the State Board of Pardons, the board could parole prisoners or refuse to do so and exercise the other supervisory powers over terms of imprisonment after conviction, commutation, pardon, and parole had the sections not been enacted. The procedural parts of the sections of the statute relating to the Board of Pardons are in no way repugnant to the Constitution.

It is provided by sections 67-0-101 and 67-0-11, R. S. Utah 1933, that:

67-0-10. “The board of pardons may extend to each convict sentenced for any period less than life who shall not have been guilty of a breach of the rules of discipline of the prison a reduction of the period of sentence as hereinafter provided; and when the full term of imprisonment for which such convict shall have been sentenced shall be diminished by his good conduct so that his term of imprisonment has thereby expired, the warden shall immediately furnish the board of pardons a certificate stating the length of time his term of imprisonment has been so diminished, and no objections appearing to the board, the convict shall be released.”

67-0-11. “The hereinafter specified deductions shall be allowed to convicts for good conduct:

“ (1) From a term of sentence of three months, fifteen days; from a term of six months, thirty days; from a term of one year, two calendar months; thus, a one-year convict shall be entitled to a discharge at the expiration of ten months.

“ (2) If the term is for any time greater than one year, the service for the second year or portion thereof shall begin at the expiration of ten months, which shall stand" for a service of one year. On the second year the convict shall be entitled to a deduction of three calendar months; thus, a service of one year and seven months shall be sufficient for a term of two years.

“ (3) The service of a third year, or portion thereof, shall begin at the expiration of one year and seven months; four calendar months shall be allowed on said third year; thus, a service of two years and three months shall be sufficient for a term of three years.

“ (4) The service of the fourth year, or portion thereof, shall begin at the expiration of two years and three months, and on the fourth year five months shall be allowed; thus, a service of two years and ten months shall be sufficient for a term of four years.

“(5) The service of the fifth year, or portion thereof, shall begin at the expiration of two years and ten months, and from the fifth year there shall be a deduction of six calendar months; thus, a service of three years and four months shall be sufficient for a term of five years.

“(6) For all time in excess of five years there shall be a deduction of one-half of such time. In all terms of sentence terminating between those hereinbefore specified, the deduction shall be proportionate.”

The meaning of the statutes as changed since the adoption of the Constitution provided in the foregoing two sections is:

“The board of pardons may extend to each convict sentenced for any period less than life who shall not have been guilty of a breach of discipline of the prison a reduction of the period of sentence as hereinafter provided; * * *

“From a term of sentence of three months, fifteen days” etc. (Italics added.)

The introductory clause of section 67-0-11 is not in harmony with the first sentence of section 67-0-10, above quoted. “The board of pardons may extend” does not temperately keep company with “The hereinafter specified deductions shall be allowed.” (Italics added.) For those who may be interested in tracing the history of the foregoing sections the following references are collected: U. S. Stats. at Large, vol. 14, c. 146, p. 424, approved March 2, 1867; U. S. Stats. at Large, vol. 16, c. 128, p. 151, approved June 14, 1870; R. S. U. S. §§ 5543, 5544; U. S. Stats. at Large, vol. 18, c. 145, p. 479, § 1, approved March 3, 1875 (see 18 U. S. C. A. § 710); Laws Utah 1880, c. 11, §§ 1, 2, 3, 4, 5, and 6, p. 12, approved February 18, 1880; Laws of Utah 1886, approved March 11, 1886, c. 6, §§ 1 to 7; Comp. Laws Utah 1888, •§§ 5267 to 5272, inclusive; R. S. Utah 1898, §§ 2246 to 2249; State ex rel. Bishop, Attorney General, v. State Board of Corrections, 16 Utah 478, 52 P. 1090; Laws Utah 1899, chap. 39. Under the provisions of the earlier laws it was provided that “Each convict” for good behavior shall be entitled to a reduction of the period of sentence, while it is now provided, section 67-0-10, the Board of Pardons may for good behavior grant a reduction of sentence, parole or pardon the prisoner. It is then provided that for a violation of the rules the convict shall be liable to forfeit all his deduction time for certain infractions, especially if aggravated. The keeping of a behavior record is provided for and a hearing and investigation by the board. Section 67-0-12.

In article 7, § 12, of the State Constitution, there are three grants of power, two to the Legislature and one to the State Board of Pardons. The Legislature is given power and authority to change the personnel of the State Board of Pardons, and to provide regulations as to the manner of applying for pardons. The State Board of Pardons is given power and authority to “remit fines and forfeitures, commute punishments, and grant pardons after convictions, in all cases except treason and impeachments * * * upon such conditions, and with such limitations and restrictions as they deem porper * * * subject to such regulations as may be provided by law, relative to the manner of applying for pardons.” As thus rearranged the powers and limitations granted and imposed seem to us to be better correlated. The last phrase quoted “subject to such regulations as may be provided by law, relative to the manner of apply ing for pardons,” limits the power of the Legislature in the matter of regulating or prescribing the procedure as to the manner of applying for pardons. That part of the section vesting power in the State Board of Pardons to remit fines and forfeitures, commute punishments, and grant pardons is self-executing and plenary. No limitation of power is imposed as to those matters. No grant of power is given to the Legislature over the Board of Pardons except to change its personnel and to provide for the manner of applying for pardons. When section 12 of article 7 of the Constitution was adopted, it was at once effective. It superseded the then existing provisions of the statute relating to pardons, remission of fines and forfeitures, and commutations of sentences.

A procedure is provided in the Constitution where it says “no fine or forfeiture shall be remitted, and no commutation or pardon granted, except after a full hearing before the Board, in open session, after previous notice of the time and place of such hearing has been given.” Article 7, § 12. The indeterminate sentence law is a law relating to the imposition of sentences upon convictions had and not a law relating to the remission of fines and forfeitures, the commutation of sentences or granting of pardons. The Legislature has the power to define crimes and fix the punishments therefor so long as the punishments are not cruel or unusual. The penalties for crimes are fixed by law and the manner of imposing sentences relating to the penalties has been provided. After a commitment out of a court having jurisdiction has been issued and executed, the prisoner then passes into the immediate custody of the Warden of the State Prison. The Legislature may not remit fines or forfeitures, nor commute punishments, nor grant pardons. This power has been given to the State Board of Pardons with the exceptions above noted relating to treason and impeachment. The so-called merit system or good time off system under the statute is a form of remission of punishment. Such allowances suggested by the statute may be helpful guides when no other measure for remission or commutation is available. The prisoner may maintain an outward good behavior in order to work for good time off, and to all appearances his conduct may entitle him to such good time off, while his actual reformation at the same time may not have progressed at all. Likewise a prisoner may have been guilty of infraction of some prison rule or regulation and yet be progressing rapidly toward that status which will enable him to function as a worthwhile member of society.

Reverting to section 12, art. 7, of the Constitution, we find the provision that “no fine or forfeiture shall be remitted, and no commutation or pardon granted, except after a full hearing before the Board, in open session after previous notice of the time and place of such hearing has been given,” confines that power to the State Board of Pardons and provides the procedure. If the specified deductions provided for by section 67-0-11, R. S. Utah 1933, above quoted, are not part of the sentence — and by construction constitute the maximum sentence conditioned upon good behavior earning the deductions — then no fine or forfeiture or commutation or pardon may be had except after action of the Board of Pardons, has been taken.

There is authority for the position that the “Copper Act” or “good time off” provision of the statute is a part of the sentence.

“An examination of the provisions found in the laws of the different states discloses that they classify themselves generally into two groups. In the first are found those statutes which by their terms automatically reduce the period of imprisonment upon the rendition of the judgment. It is said, indeed, that a provision of this character forms a part of the judgment, and that under it the prisoner enters upon his confinement with the statutory assurance that his term is automatically abridged by law, unless by his own breach of prison discipline he forfeits the credits which inhere to his sentence. Under a statute of this character the presumption is in favor of the convict, and the burden is upon the state to show affirmatively the facts which defeat the claim to statutory allowances. In re Wadleigh, 82 Cal. 518, 23 P. 190; In re Canfield, 98 Mich. 644, 57 N. W. 807; In re Kness, 58 Kan. 705, 50 P. 939; State v. Hunter, 124 Iowa 569, 100 N. W. 510, 104 Am. St. Rep. 361. In the second group are those statutes which determine in advance the amount of credits — computed in days and months — which certain prisoners may earn upon certain specified terms and conditions. The commutation is held out as a reward for good conduct or efficiency in prison labor. A statute of this character cannot enter into the sentence or form a part of it, for the reward must first be earned before the prisoner is entitled to it.” Stephens v. Conley, 48 Mont. 352, 138 P. 189, 192, Ann. Cas. 1915D, 958.

Under our Constitution, the statute for good time off cannot be a part of the sentence. In addition to that, the indeterminate sentence is analogous to a sentence for life in that a maximum is fixed. The so-called “Copper Act” has been held not to apply to life sentences. The maximum is life. The sentence for life may by the State Board of Pardons be commuted to a definite term on such conditions as the board may by its order impose. A sentence for robbery, under the Utah Indeterminate Sentence Law (Rev. St. 1933, 105-36-20) is from five years to life. It could hardly be argued that in commuting the sentence, say to ten years, the board could not add the condition — 10 years of actual time served.

In the case of In re Harry W. Hall, 34 Neb. 206, 51 N. W. 750, 751, Hall was sentenced to imprisonment for life. The sentence was by the Governor commuted. The commutation order of the Governor read, in part:

“I * * * do hereby commute the sentence of the said Harry W. Hall from life to nine years of actual time in said penitentiary, and, when he shall have served nine years’ actual time in said penitentiary, he shall be discharged, with all his former rights of citizenship restored.”

The court, in holding that the “Copper Act” did not apply, states:

“Counsel for petitioner in their argument and printed brief have referred us to a number of cases which to our minds are conclusive upon two propositions: First, that the commutation of a sentence like the one under consideration is not in the nature of a conditional pardon, but the substitution of one sentence for another, and for the purpose of its execution will be treated precisely as if the substituted sentence had been imposed by the court in the first instance, provided, of course, it is within the jurisdiction of the court; second, that an order of commutation, like a pardon, should be strictly construed, as against the state, and liberally in favor of the convict. We are unable, however, to give to the order of commutation the construction contended for by counsel. By the terms used it is plain to us that the governor intended the reduced sentence to be nine years of service within the penitentiary. The language, ‘from life to nine years of actual time in the penitentiary, and when he shall have served nine years’ actual time in the said penitentiary he shall be discharged,’ etc. notwithstanding the foregoing rules, appears to us to be too plain for construction. To construe the commutation in accordance with the contention of counsel for the petitioner would be a palpable violation of that elementary rule of construction, viz. that effect will be given, when possible, to all of the terms and conditions of the instrument in question. In our view, the term ‘nine years of actual time in the penitentiary’ must be held to mean nine years exclusive of any reduction on account of good time. The demurrer to the petition will be sustained.”

From what has been said it follows that the writ of habeas corpus heretofore issued should be, and the same is, recalled, held for naught, and the plaintiff’s application therefore denied.