William R. Leach v. United States

334 F.2d 945

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 19, 1964
• Docket: 18198
• Status: Published

Opinions

BAZELON, Chief Judge.

When William Leach appeared for sentencing after his conviction for robbery, he asked the judge to refer him for a mental examination. The prisoner said he had twice been under psychiatric care. His lawyer told the court that in the last 31 years, Leach’s entire adult life, he had been out of prison only 63 days. The pre-sentence report characterized Leach as “the classical picture of the psychopathic offender.” Yet the judge ignored his request for an examination. Alleging this and other errors, Leach appealed. This court held the other errors harmless and affirmed the conviction. Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963). But we remanded the case to the district judge to reconsider the sentence because there was “no indication here that the court * * * made use of any of the aids to sentencing placed at its disposal by the Congress of the United States. * * * In view of the fact * * * that the record reflects no response on the part of the court to appellant’s request for examination prior to sentence, that request may not have been considered.” 115 U.S.App.D.C. at 354, 320 F.2d at 673.

On remand, the trial judge reconsidered the sentence without further investigation of any kind, and in particular, without referring the prisoner for a mental examination. The judge reinstated the original sentence.¹ The defendant had no hearing, though he sought one,² on the need for a mental examination. Reconsideration of the sentence occurred in the defendant’s absence, though Rule 43, F.R.Crim.P., requires his presence “at every stage of the trial * * * including the imposition of sentence.” ³ Leach’s counsel also was not present at the reconsideration of the sentence, though this was an important step in the proceedings against him. Compare White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).

The judge gave four reasons for adhering to the former sentence: the probation officer had recommended the maximum sentence and had not himself, as he had power to do (D.C.Code § 24-106), referred Leach for a mental examination; the crime was a serious one; the defendant had a record of repeated robberies; and “there was no competent evidence of any kind prior to, during or after the trial or prior to the imposition of sentence, that the defendant Leach was suffering from any mental illness.”

We think these reasons do not support the judge’s decision. That the probation officer failed to refer Leach for an examination is no reason for the judge, who is in a supervisory capacity over the officers, to fail also.⁴ That the crime was serious and that previous efforts at rehabilitation had collapsed made this the sort of case in which further study was needed.⁵ That the judge thought there was no competent evidence of “mental illness” should not have precluded an examination as an aid to sentencing and treatment.⁶

The adamant refusal in this case to refer the prisoner for a mental examination was an abuse of discretion. Three statutes make a psychological evaluation of the prisoner available to the sentencing judge in the District of Columbia. The court may refer him to a mental hospital for examination if “it shall appear * * * from the court’s own observations or from prima facie evidence * * * that the accused is of unsound mind or is mentally incompetent * * * to understand the proceedings.” D.C.Code § 24-301(a). This statute may have misled the judge. He stated that there “was no evidence * * that the defendant had any mental illness,” which implies that he thought the conditions set by § 24-301 are always requisite for a pre-sentence examination. But provisions other than § 24-301 allow such examinations and there are other reasons than those in § 24-301 for ordering such examinations.⁷ In Leach’s case extreme recidivism was combined with a request for aid, and the probation officer, who had investigated Leach’s background and had talked to him at length, called him a psychopathic offender. The diagnosis of the New Jersey State Prison, part of the pre-sentence report, was: “psychopathic personality, unstable, unreliable, recidivistic, antisocial, poor prognosis for good adjustment if released.” This might well be a sufficient prima facie case for an examination.⁸ But assuming arguendo that it was not, it was enough to make clear the usefulness of a psychological evaluation in determining the sentence.

Section 24-106 (D.C.Code) provides “a qualified psychiatrist and a qualified psychologist” for the district judges and the probation officers, among others, “to assist them in carrying out their duties.” The statute leaves to the judges’ discretion the cases in which they should use the Legal Psychiatric Services. But we pointed out in our former opinion herein that the District Court had recently refused to employ the service at all. This seems to reflect a failure to exercise discretion. In 1960, 51 cases were referred to the service and in 1962 only 3.⁹ In the absence of any indication of major change in the types of cases before the courts, or of poor performance by the service, we were at a loss to discover the reason for this sudden drop in referrals. Leach could have been examined under this statute.¹⁰

Also open to the sentencing judge is the possibility of sentencing the prisoner, then referring the prisoner to the custody of the Attorney General where the Prison Bureau may make a complete survey of his mental, social and emotional adjustment in a controlled atmosphere.¹¹ Rule 35, Fed.R.Crim.P., provides that “the court may reduce a sentence within 60 days after [it] is imposed.” Thus the judge may refer the prisoner for two months of study and if a prognosis for rehabilitation appears he may then reduce the sentence.

The widely acknowledged usefulness of this technique moved Congress in 1958 “to make the opportunity [for study]' more certain”¹² by allowing a Federal judge to refer a prisoner for a possible 6-month rather than 2-month period. 18 U.S.C. § 4208(b). The statute calls for the collection of “data regarding the prisoner’s previous delinquency or criminal experience, pertinent circumstances of his social background, his capabilities, his mental and physical health, and such other factors as may be considered pertinent.” 18 U.S.C. § 4208(c). Though the 6-month period is not applicable to offenses under the D.C. Code, the opportunity to reduce a sentence after evaluation is available for a 60-day period¹³ under Rule 35, Fed.R. Crim.P.

Section 4208(b) was one of a group of statutory changes by which Congress showed profound interest in the rehabilitative function of sentencing and recognized the potential value of modern psychological knowledge in achieving the aim.¹⁴ The legislation resulted from a movement by judges over the country to examine and improve sentencing techniques.¹⁵ The traditional effort to make the punishment fit the crime is largely superseded by an effort to make the treatment fit the offender. The presentence report in which a probation officer makes a study of the social background and history of the offender has become routine. This court recently reversed a case in which a judge sentenced two youthful offenders immediately after trial without awaiting a pre-sentence report. Peters v. United States, 113 U.S.App.D.C. 236, 307 F.2d 193 (1962). Psychiatric evaluation through the Legal Psychiatric Services or through the Prison Bureau program, like the presentence report, is a useful tool for rehabilitative rather than retributive sentencing. Such evaluation does not, of course, provide all the answers to the sentencing puzzle, but Congress and experts in criminology agree that it has a crucial place in the process.

This plainly appears from House and Senate reports on § 4208 (b):

“The Federal judge has a heavy caseload, and the time and resources available to him in the determination of sentences are extremely limited. He frequently does not get sufficient information from the prosecuting attorney, the defense attorney, the probation officer’s presen-tence report, or the defendant himself to enable the court to formulate a sentence which is equitable both to the defendant and to the public. H.Rep. No. 1946, 85th Cong., 2d Sess. 6 (1958).

“This observation and diagnosis would be extremely helpful to the court in making disposition in certain types of cases; particularly where a difficult medical, psychiatric, sex, or rehabilitative problem may be-involved.” S.Rep. No. 2013, 85th Cong., 2d Sess. 10, U.S.Code Congressional and Administrative News, p. 3898 (1958).

Since these considerations apply to Leach’s case, we must respectfully reject the dissent’s contention at pp. 954, 955 that the concerns of § 4208 (b) are somehow inapplicable.

A judge sentencing for a D.C. Code violation has two sources other than D.C.Code § 24-301(a), supra p. 948,. from which to obtain a psychiatric evaluation: The Legal Psychiatric Services, D.C.Code § 24-106, and the two-month study made possible by Rule 35, Fed.R.CRIM.P. But the first has fallen into desuetude and the judges have ignored the second even after its endorsement by Congress in 18 U.S.C. § 4208(b). Against this background of neglect, Leach’s case is a dramatic example of' the need for such services. If Leach,, his family or friends had had the intellectual and financial ability, he would have been able to present psychiatric and other information directed to the separate issue of sentencing. Compare the extensive psychiatric evidence and argument offered to mitigate the sentence by the wealthy defendants in the Loeb-Leopold case. Sellers, THE LOEBLEOPOLD CASE. A wide difference between the opportunities for justice available to the rich and poor has often been held “invidious discrimination.” Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108 (1963); Brown v. United States, 118 U.S.App.D.C. -, 331 F.2d 822 (decided April 10, 1964).

In Jones v. United States, No. 17485, decided en banc Dec. 13, 1963, 117 U.S.App.D.C. 169, 327 F.2d 867, we reversed a death sentence because the trial judge had not received and considered the results of a mental examination before exercising his statutory discretion to reimpose a capital sentence. Cf. Watson v. Cameron, 114 U.S.App.D.C. 151, 312 F.2d 878 (1962).¹⁶

We do not question the general rule that an appellate court will not ordinarily review sentences that are within the statutory maximum. We hold only that the sentencing judge should use some of the resources which Congress has provided and that he may not arbitrarily ignore the data properly obtained thereby. See United States v. Wiley, 267 F.2d 453 (7th Cir. 1959); United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), in which the appellate court first remanded because of the trial judge’s refusal to hold .a probation hearing, and, on the second .appeal, after a hearing had been accorded and probation denied, set aside the .sentence as too severe. See also United States v. Frank, 245 F.2d 284, 288 (3d Cir.), cert. denied, 355 U.S. 819, 78 S.Ct. 25, 2 L.Ed.2d 35 (1957); United States v. Cosentino, 191 F.2d 574, 575 (7th Cir. 1951).

The sentence will be set aside and the •case remanded with directions to grant the defendant’s request for a mental ex- . animation before re-sentencing, and to •conduct any further proceedings in accordance with this opinion.

So ordered.

1 . United States v. Leach, 218 F.Supp. 271 (D.D.C.1963). The case is before us now on a motion for summary reversal.

2 . After remand to the District Court, defense counsel on June 11, 1963, filed a formal motion for mental examination under D.C.Code § 24-106.

3 . After our remand in Leach v. United States, supra, the original sentence could not stand without further proceedings. The reconsideration was therefore part of the criminal proceedings which required the defendant’s presence. Cf. Williamson v. United States, 265 F.2d 236 (5th Cir. 1959), cert. denied, 358 U.S. 941, 79 S.Ct. 348, 3 L.Ed.2d 349 (1959). And see United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963).

4 . “The incorporation of medical, psychiatric and. psychological services in its program of diagnosis and treatment is the greatest advance made in probation —indeed in all social work — of the last thirty years.”

Sehute & Bell, Crime, Courts and Probation 148. Nevertheless, the United States Probation Service has not fully availed itself of psychiatric and psychological information. See Pye, Shadoan & Snee, A Preliminary Survey of the Federal Probation System, Geo.U. Law Center 24 (1963).

5 . Pronounced recidivism is almost universally agreed upon as a basis for referring a prisoner for psychiatric study. See, e. g., C. E. Smith (Ass’t Medical Director, Bur. of Prisons), Observation and Study of Defendants Prior to Sentencing, Fed.Prob. 6 (June 1962):

“Persons with unusual and unexplained backgrounds of recidivism, and those with a history of prior observation for mental disorder, will generally be referred for examination.”

Schmidt, Criteria Governing the Selection of Offenders for Examination, Internat’l Rev. of Crim.Policy, No. 3, Jan. 1953, p. 13, at p. 15 (U.N.Doc. No. ST/SoA/Ser. M/3):

“The criminal career in itself often affords a good criterion [for referring a prisoner for mental examination]. Thus, the repetition of some special category of crime, the character of the recidivism (for example, the very frequent repetition of an offence) or the reaction of the offender to previous punishment will often direct attention to the offender in a way that will reveal the need for examination.”

6 . If the judge thought Leach was raising an issue of incompetency or insanity, even as late as sentencing, it would have been .well to order a mental examination to avoid the necessity of a later § 2255 motion. See Mock v. United States, 329 F.2d 496 (6 Cir., 1964).

7 . If a prisoner is found incompetent or mentally ill under § 24-301 (a), lie maybe treated on a short-term basis or even committed until cured. Section 24-301 (a) has generally been applied in but is not limited to cases in which insanity has failed as a defense or in which the defendant has pleaded guilty and his competency to undergo sentencing is at issue. See the discussion of the section by the Supreme Court in Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).

8 . Pew eases in this court, none recent, have dealt with the showing necessary under the statute (§ 24-301 (a)) before sentencing. Apparently, defendants have not often raised the issue and this court has not often had occasion to review the discretion of the trial judge.

9 . 320 F.2d at 673 n. 5.

10 . The dissent argues that the legislative history of § 24 — 106 prevents Leach’s referral under it. In making the Legal Psychiatric Services available to district judges, Congress was apparently concerned with the specific situation of the incompetent prisoner who desires to plead guilty. But the statute did not restrict the judges’ use of the service to this specific situation. Bather, it made the service available to judges on the same basis as to probation officers, juvenile court officers, etc., “to assist them in carrying out their duties.” The fact is that prior to 1961, and since our first opinion herein, Leach v. United States (1963), supra, district judges were and are using the service to aid in a variety of sentencing problems. Letter to Chief Judge Ba-zelon from Dr. David A. Lanham, Chief of the Legal Psychiatric Services, dated March 25, 1964. Thus nothing in the statute itself or the practice under the statute prevented the judge from referring Leach to the Legal Psychiatric Services. Of course, the abuse of discretion was not the refusal to use the Legal Psychiatric Services in particular, but the failure to order a mental examination which was available through several facilities.

11 . The process of study was described by James V. Bennett, Director of the Bureau of Prisons, before the Sentencing Institute in the District of Columbia on January 30, 1960:

“[T]he defendant is committed to a federal institution having the best staff and equipment to diagnose the case. A prisoner upon receipt in the institution is interviewed by all of the members of the staff, including the doctor, the case worker, the psychiatrist, and the chaplain and then his ease goes before the full classification committee where it is discussed fully and a staff recommendation agreed upon. The case is then submitted to us in Washington where it is again reviewed by our staff, and a letter written to the judge outlining what seems to us to he the pertinent points to be considered, the kind of treatment that we believe would be most effective in bringing about the offender’s rehabilitation and what sentence we believe would be most fitting.”

12 . S.Rep.No. 2013, 85th Cong., 2d Sess. p. 10; U.S.Code and Congressional News, p. 3891 (1958).

13 . It was apparently felt that in the interest of simplicity the expanded period should be confined 'to Federal offenses. See testimony before Subcommittee No. 3 of the House Committee on the Judiciary on H.J.Res. 425, 85th Cong., 2d Sess., 36, 37 (1958).

14 . Otlier parts of the legislation which passed at the same time (Pub.L. 85-752, Aug. 25, 1958, 72 Stat. 845) were:

28 U.S.C. § 334, which provided for institutes and joint councils on sentencing to consider among other items “(1) The development of standards for the content and utilization of presentence reports; (2) the establishment of factors to be used in selecting cases for special study and observation in prescribed diagnostic clinics; (3) the determination of the importance of psychiatric, emotional, sociological and physiological factors involved in crime and their bearing upon sentences; (4) the discussion of special sentencing problems in unusual eases such as treason, violation of public trust, subversion, or involving abnormal sex behavior, addiction to drugs or alcohol, and mental or physical handicaps; (5) the formulation of sentencing principles and criteria which will assist in promoting the equitable administration of the criminal laws of the United States.”

18 U.S.O. § 4208(a), which authorized the courts in sentencing a prisoner to fix an earlier date when he may become eligible for parole or to impose the maximum sentence and leave the time of eligibility for parole within the discretion of the parole board. S.Rep. No. 2013, 85th Cong., 2d Sess. (1957). The hearings on the bill make clear its purpose to facilitate rehabilitation by assuring that parole will be possible when the prisoner has reached an appropriate stage in his rehabilitation.

15 . The last five years have swelled the sentencing literature, with the emphasis always on the need to study the individual offender and mote justice for him. See Bennett, Count-Down for Judicial Sentencing, 28 J. Bar Ass’n, D.C. 420 (1961); Glueck, Pre-sentence Examination of Offenders To Aid in Choosing a Method of Treatment, 41 J.Crim.B. & Criminology 717 (1951); Kaufman, Enlightened Sentences Through Improved Techniques, Fed.Prob. 3 (Sept. 1962) ; Pilot Institutes on Sentencing under the Auspices of the Judicial Conference of the United States, July 16-17, 1959, 26 F.R.D. 231 (1961); Special Issue on the Medico-Psychological and Social Examination of Offenders, Internat’l Rev. of Crim.Policy, No. 3, Jan. 1953 (U.N.Doc. No. ST/SoA/Ser. M/3); see generally, excellent bibliography in the Report to the House Committee on the Judiciary, Federal Sentencing Procedures, 85th Cong., 2d Sess. 162-65 (1958).

16 . In Watson the court confronted a statute leaving the broadest discretion in the trial judges. D.C.Code § 24-301 (1961). But this court in order to serve “the ends of justice and its efficient administration” established a minimum standard for the statute’s application. Here, in pursuit of the same ends, we hold that though the trial judge has broad discretion in sentencing, he may not ignore the facilities which Congress has madle available in a case where the need for their use is dear.