Mandamus, out of this Court, is a proper remedy for enforcing a
criminal sentence where the district court which passed it has
defeated its execution by an
ultra vires order of
suspension.
The proceeding should be directed to the district judge with a
view to the annulment of the order of suspension, not to the clerk
with a view to the issuance of a commitment in spite of it.
An accused person was duly sentenced in a district court of the
United States pursuant to an act of Congress, and the court then
immediately made an order that execution of the sentence be
suspended "during the good behavior of the defendant," the effect
of which, if sustained, would have been to exempt him permanently
and absolutely from the punishment provided by the act and
reflected in the sentence.
Held that such a suspension --
the legal equivalent of an absolute and permanent refusal to impose
any sentence under the statute -- was beyond the power of the
court.
The Constitution assigns to the legislature the power to enact
laws defining crimes and fixing the degree and method.of
punishment, to the judiciary the power to try offenses under those
laws and impose punishment within the limits and according to the
methods therein provided, to the executive the power to relieve
from the punishment so fixed by law and so judicially ascertained
and imposed.
Page 242 U. S. 28
The power of Congress to fix punishment for crime includes the
power, by probation or other suitable legislation, to equip the
courts in advance with such latitude of discretion as will enable
them to vary and control the application of punishment to suit the
exigencies of each case, in accord with obvious considerations of
humanity and public wellbeing;
But the courts, albeit under the Constitution they are possessed
inherently of a judicial discretionary authority which is ample for
the wise performance of their duties in the trying of offenses and
imposing of penalties as the laws provide, have no inherent
constitutional power to mitigate or avert those penalties by
refusing to indict them in individual cases.
Semble that, at common law, while the courts exercised
a discretion to suspend either imposition or execution of sentence
temporarily for purposes and in ways consistent with the due
enforcement of the penal laws, so as to facilitate action by the
pardoning power and avoid miscarriages of justice, they neither
possessed nor claimed the power of permanent refusal to enforce
them.
In weight and reason, the decisions of the state courts deny the
power of suspension here in question.
The order of suspension, being essentially unconstitutional, may
not be sustained because it accords with a practice (of
longstanding though intermittent and not universal) indulged for
the highest motives by many federal judges in Ohio and
elsewhere.
The hardships and wrongs resulting from this practice and its
annulment address themselves to the pardoning power; the evils
which the practice was designed to avoid may be remedied for the
future by appropriate legislation.
Under the exceptional circumstances of the case, this Court,
exercising its discretion, to the end that ample time may be
afforded for executive clemency or such other action as the
situation may require, directs that the writ of mandamus do not
issue until the end of the term unless earlier requested by the
United States.
Upon application of the government, presented by the Attorney
General, a rule was made upon Honorable John M. Killits, Judge of
the District Court of the United States for the Northern District
of Ohio, directing that he show cause why a writ of mandamus should
not issue requiring him to set aside the order described in the
opinion. The case was heard upon the government's
Page 242 U. S. 29
petition, the respondent's return, and the government's reply.
The facts are stated in the opinion.
Page 242 U. S. 37
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
The accused pleading guilty to an indictment charging him in
several counts with embezzling the money of a national bank of
which he was an officer, and making false entries in its books, in
violation of § 5209, Revised Statutes, was sentenced to
imprisonment in the penitentiary for five years, the shortest term
which, under the statute, could have been imposed upon him. At
once, at his request, over the objection of the United States
district attorney, the court ordered
"that the execution of the sentence be, and it is hereby,
suspended during the good behavior of the defendant, and for the
purpose of this case this term of this court is kept open for five
years."
The United States moved to set this order aside on the ground
that, as it was not a mere temporary suspension of the sentence to
enable legal proceedings pending or contemplated to revise it to be
taken, or application for pardon to be made, or any other legal
relief against the sentence to be resorted to, but, on the
contrary, as it was a permanent suspension based upon
considerations extraneous to the legality of the conviction or the
duty to enforce the sentence, the order of suspension was void, as
it was equivalent to a refusal to carry out the statute. The motion
was denied. In the opinion giving its reasons for so doing, the
court, conceding that the suspension was permanent, stated the
Page 242 U. S. 38
general considerations which it deemed it was required to take
into view in deciding whether the sentence should be enforced,
conceding the legality of the conviction and sentence and their
finality, as follows:
"Modern notions, respecting the treatment of lawbreakers,
abandon the theory that the imposition of the sentence is solely to
punish, and now the best thought considers three elements properly
to enter into the treatment of every criminal case after
conviction. Punishment in some measure is still the object of
sentence, but, affecting its extent and character, we consider the
effect of the situation upon the individual, as tending to reform
him from or to confirm him in a criminal career, and also the
relation his case bears to the community in the effect of the
disposition of it upon others of criminal tendencies."
After pointing out the peculiar aptitude possessed by a trial
judge for the appreciation of such conditions, and the imperative
duty which rested upon such judge to consider and weigh the matters
stated, and to determine, as an inherent attribute of judicial
power, whether a permanent suspension of the term of imprisonment
fixed by the statute should be ordered, the circumstances upon
which it was concluded that a permanent suspension should be
directed were stated in part as follows:
"We took into account the peculiar circumstances under which his
crime was committed, having regard to the temptations which from
time to time encompassed him, and his personal necessities, and the
purposes for which his appropriations were made. Also, the fact
that his friends made his employers whole, and that otherwise he
had so commended himself to the favor of his employers suffering by
his crime that they at all times, as well as now, evince a
disposition to forgive his abuse of their confidence, and to
support him against the punishment which the law provides. We find
that otherwise than for this crime, his disposition, character, and
habits have so strongly commended
Page 242 U. S. 39
him to his friends, acquaintances, and persons of his faith that
they are unanimous in the belief that the exposure and humiliation
of his conviction are a sufficient punishment, and that he can be
saved to the good of society if nothing further is done with
him."
After further elaborating considerations of a like nature, and
stating very many circumstances confirming those mentioned, to
leave no room for doubt that its action was intended to be
permanent and was based alone on the extraneous circumstances
stated, the court said:
"Passing now to the concrete case, we observe for the benefit of
the United States that nothing exists in this case which moved the
court to suspend the execution of sentence to prevent 'an abuse of
the court's process, or to prevent an injustice being done to the
defendant,' so far as it may be said that abstract justice required
defendant to suffer for his crime. However, we considered the
defendant from many standpoints to be as worthy of the benefit of
the discretion to suspend the execution of his sentence as any
other convict upon whom that favor has hitherto been bestowed."
Following a written demand which was thereafter made upon the
clerk to issue a commitment, which was refused by him on the ground
that the sentence had been suspended, and the further refusal of
the judge to direct the clerk to issue such commitment, the United
States sought and obtained a rule to show cause why a mandamus
should not be awarded directing the judge to vacate the order of
suspension, under which the subject is now before us for
consideration.
The remedial appropriateness of the writ of mandamus is at the
threshold questioned, but we dispose of the subject by a mere
reference to adjudged cases conclusively establishing the want of
foundation for the contention.
Ex Parte
Bradley, 7 Wall. 364;
Life &
Fire Ins. Co. v. Wilson, 8 Pet. 291;
In re Winn,
213 U.S.
Page 242 U. S. 40
458;
In re Metropolitan Trust Co., 218 U.
S. 312;
Ex Parte Metropolitan Water Company,
220 U. S. 539. In
addition, however, it is urged that, as the right to resort to the
extraordinary remedy by mandamus must rest upon the assumption that
the order of suspension was absolutely void, therefore the rule for
the writ should have been directed not against the judge, but
against the clerk, to compel him to issue the commitment. But we
pass from its consideration, as we are of opinion that its want of
merit will be completely demonstrated by the slightest appreciation
of the judicial duties of the court below and the ministerial
relation of the clerk of the court to the same.
The return to the rule and the statement in support of the same
lucidly portray the contentions involved in the question of power
to be decided, and the subject in all its aspects has been
elaborately discussed, not only by the printed arguments of the
parties, but, in addition, light has been thrown on the general
question by an argument submitted by the New York State Probation
Commission, explaining the statutory system of parol prevailing in
that state, and by an able argument presented by members of the bar
of the First Circuit in behalf of a practice of mitigating or
pretermitting, when deemed necessary, the statutory punishment for
crimes, which it is declared has prevailed in the United States
courts in that circuit for many years.
The argument on behalf of the respondent concedes that the order
of suspension was permanent, and absolutely removed the accused
from the operation of the punishment provided by the statute, and
it is further conceded that a suspension of this character was the
equivalent of an absolute and permanent refusal to impose, under
the statute, any sentence whatever. However absolute may be the
right thus asserted, it is nevertheless said it is not without
limitation, since it may not be capriciously called
Page 242 U. S. 41
into play. Passing the question whether this assumed restriction
is not, in the nature of things, imaginary as the result of the
scope of the authority asserted, let us come to dispose of the
contention made by examining the propositions relied upon to
sustain it.
They are: 1. that the right to refuse to impose a sentence fixed
by statute, or to refuse to execute such a sentence when imposed,
is a discretion inhering in the judicial power to try and punish
violations of the criminal law; 2. that even if there be doubt on
this subject as an original proposition, such doubt is dispelled as
the right was recognized and frequently exerted at common law; 3.
that the power claimed has also been recognized by decisions of
state courts and of United States courts of original jurisdiction
to such an extent that the doctrine is now to be considered as not
open to controversy; 4. that, whatever may be the possibility of
dispute as to this last view, at least it cannot be denied that, in
both the state and federal courts over a very long period of time,
the power here asserted has been exercised, often with the express,
and constantly with the tacit, approval of the administrative
officers of the state and federal governments, and has been also
tacitly recognized by the inaction of the legislative department
during the long time the practice has prevailed, to such an extent
that the authority claimed has in practice become a part of the
administration of criminal law, both state and federal, not subject
to be now questioned or overthrown because of mere doubts of the
theoretical accuracy of the conceptions upon which it is
founded.
1.
The contention as to inherent judicial power.
Indisputably, under our constitutional system, the right to try
offenses against the criminal laws, and, upon conviction, to impose
the punishment provided by law, is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such
subject, courts inherently possess
Page 242 U. S. 42
ample right to exercise reasonable -- that is, judicial --
discretion to enable them to wisely exert their authority. But
these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power
to enforce begets inherently a discretion to permanently refuse to
do so. And the effect of the proposition urged upon the
distribution of powers made by the Constitution will become
apparent when it is observed that indisputable also is it that the
authority to define and fix the punishment for crime is
legislative, and includes the right in advance to bring within
judicial discretion for the purpose of executing the statute
elements of consideration which would be otherwise beyond the scope
of judicial authority, and that the right to relieve from the
punishment fixed by law and ascertained according to the methods by
it provided, belongs to the executive department.
The proposition might well be left with the demonstration which
results from these considerations, but the disregard of the
Constitution which would result from sustaining the proposition is
made, if possible, plainer by considering that, if it be that the
plain legislative command fixing a specific punishment for crime is
subject to be permanently set aside by an implied judicial power
upon considerations extraneous to the legality of the conviction,
it would seem necessarily to follow that there could be likewise
implied a discretionary authority to permanently refuse to try a
criminal charge because of the conclusion that a particular act
made criminal by law ought not to be treated as criminal. And thus
it would come to pass that the possession by the judicial
department of power to permanently refuse to enforce a law would
result in the destruction of the conceded powers of the other
departments, and hence leave no law to be enforced.
2.
The contention as to support for the proposition at
common law.
Page 242 U. S. 43
The common law is thus stated in Hale's Pleas of the Crown, vol.
2, chap. 58, p. 412:
"Reprieves or stays of judgment or execution are of three kinds,
viz.:"
"I. Ex
mandato regis. . . ."
"II.
Ex arbitrio judicis. Sometimes the judge reprieves
before judgment, as where he is not satisfied with the verdict, or
the evidence is uncertain, or the indictment insufficient, or
doubtful whether within clergy, and sometimes after judgment, if it
be a small felony, tho out of clergy, or in order to a pardon or
transportation. Crompt. Just. 22b, and these arbitrary reprieves
may be granted or taken off by the justices of gaol-delivery, altho
their sessions be adjourned or finished, and this by reason of
common usage. Dy. 205a."
"III.
Ex necessitate legis, which is in case of
pregnancy, where a woman is convict of felony or treason."
Blackstone thus expresses it:
"The only other remaining ways of avoiding the execution of the
judgment are by a reprieve or a pardon, whereof the former is
temporary only, the latter permanent."
"I. A reprieve (from
reprendre, to take back), is the
withdrawing of a sentence for an interval of time; whereby the
execution is suspended. This may be, first,
ex arbitrio
judicis, either before or after judgment, as where the judge
is not satisfied with the verdict, or the evidence is suspicious,
or the indictment is insufficient, or he is doubtful whether the
offense be within clergy, or sometimes if it be a small felony, or
any favourable circumstances appear in the criminal's character, in
order to give room to apply to the Crown for either an absolute or
conditional pardon. These arbitrary reprieves may be granted or
taken off by the justices of gaol delivery, although their session
be finished, and their commission expired, but this rather by
common usage, than of strict right. "
Page 242 U. S. 44
"Reprieves may also be
ex necessitate legis, as where a
woman is capitally convicted, and pleads her pregnancy; though this
is no cause to stay the judgment, yet it is to respite the
execution till she be delivered. This is a mercy dictated by the
law of nature,
in favorem prolis."
(Book IV, ch. xxxi, pp. 394-395.)
While it may not be doubted under the common law as thus stated
that courts possessed and asserted the right to exert judicial
discretion in the enforcement of the law to temporarily suspend
either the imposition of sentence or its execution when imposed to
the end that pardon might be procured, or that a violation of law
in other respects might be prevented, we are unable to perceive any
ground for sustaining the proposition that, at common law, the
courts possessed or claimed the right which is here insisted upon.
No elaboration could make this plainer than does the text of the
passages quoted. It is true that, owing to the want of power in
common law courts to grant new trials, and to the absence of a
right to review convictions in a higher court, it is, we think, to
be conceded: (a) that both suspensions of sentence and suspensions
of the enforcement of sentences temporary in character were often
resorted to on grounds of error or miscarriage of justice which,
under our system, would be corrected either by new trials or by the
exercise of the power to review; (b) that not infrequently, where
the suspension either of the imposition of a sentence or of its
execution was made for the purpose of enabling a pardon to be
sought or bestowed, by a failure to further proceed in the criminal
cause in the future, although no pardon had been sought or
obtained, the punishment fixed by law was escaped. But neither of
these conditions serve to convert the mere exercise of a judicial
discretion to temporarily suspend for the accomplishment of a
purpose contemplated by law into the existence of an arbitrary
judicial power to permanently refuse to enforce the law.
Page 242 U. S. 45
And we can deduce no support for the contrary contention from
the rulings in 2 Dyer, 165a, 205a, and 235a, since those cases but
illustrate the exercise of the conceded, reasonable, discretionary
power to reprieve to enable a lawful end to be attained. Nor from
the fact that common law courts possessed the power by recognizance
to secure good behavior -- that is, to enforce the law -- do we
think any support is afforded for the proposition that those courts
possessed the arbitrary discretion to permanently decline to
enforce the law. The cases of
Rex v. Hart, 30 How. State
Trials 1344 and
Regina v. Dunn, 12 Q.B. 1026, 1041,
certainly do not tend to so establish, since they simply manifest
the exertion of the power of the courts after a conviction and the
suffering of the legal penalty to exact from the convicted person a
bond for his good behavior thereafter.
3.
The support for the power asserted claimed to be derived
from the adjudication of state and federal courts.
Coming first to the state courts, undoubtedly there is conflict
in the decisions. The area, however, of conflict will be narrowed
by briefly stating and contrasting the cases. We shall do so by
referring chronologically to the cases denying the power, and then
to those relied upon to establish it.
In 1838, the Supreme Court of North Carolina, in
State v.
Bennett, 4 Dev. & Battle's Law 43, was called upon to
decide whether a trial court had the right to permanently remit
upon condition a part of a criminal sentence fixed by statute. The
court said:
"We know that a practice has prevailed to some extent of
inflicting fines with a provision that they should be diminished or
remitted altogether upon matter thereafter to be done, or shown to
the court by the person convicted. But we can find no authority in
law for this practice, and feel ourselves bound, upon this first
occasion when it is brought judicially to our notice, to declare it
illegal. "
Page 242 U. S. 46
In 1860, in
People v. Morrisette, 20 How.Pr. 118, an
accused, after pleading guilty, asked a suspension of sentence and
to be then discharged from custody. The court said:
"I am of the opinion the court does not possess the power to
suspend sentence indefinitely in any case. As I understand the law,
it is the duty of the court, unless application be made for a new
trial, or a motion in arrest of judgment be made for some defect in
the indictment, to pronounce judgment upon every prisoner convicted
of crime by a jury who pleads guilty. An indefinite suspension of
the sentence prescribed by law is a
quasi-pardon, provided
the prisoner be discharged from imprisonment. No court in the state
has any pardoning power. That power is vested exclusively in the
governor."
In
People v. Brown, 54 Mich. 15, in deciding that no
power to permanently suspend a sentence existed, speaking through
Mr. Chief Justice Cooley, the court said:
"Now it is no doubt competent for a criminal court, after
conviction, to stay for a time its sentence, and many good reasons
may be suggested for doing so -- such as to give opportunity for a
motion for a new trial or in arrest, or to enable the judge to
better satisfy his own mind what the punishment ought to be,
Commonwealth v. Dowdican's Bail, 115 Mass. 133, but it was
not a suspension of judgment of this sort that was requested or
desired in this case; it was not a mere postponement; it was not
delay for any purpose of better advising the judicial mind what
ought to be done, but it was an entire and absolute remission of
all penalty and the excusing of all guilt. In other words, what was
requested of the judge was that he should take advantage of the
fact that he alone was empowered to pass sentence, and, by
postponing indefinitely the performance of this duty, indirectly,
but to completed effect, grant to the respondent a pardon for his
crime."
And considering the doctrine as to the want of power
Page 242 U. S. 47
thus expounded from the point of view of the common law and of
every argument here relied upon, state courts have, in the cases
which are in the margin, in careful opinions denied the existence
of the power now claimed. [
Footnote
1]
The cases to the contrary are these, omitting one in a court of
original jurisdiction in Massachusetts, referred to by counsel, but
in which there is no written opinion:
In 1874, in
Commonwealth v. Dowdican's Bail, 115 Mass.
133, the right in a criminal case "to lay the case on file" and
postpone the sentence was sustained, the court declaring that the
practice had long existed, and was recognized by statutes, one of
which regulated the granting of parol by courts in liquor
cases.
Page 242 U. S. 48
The case just cited was approvingly referred to in
Sylvester
v. State, 65 N.H.193, and declared to express the practice
long prevailing in New Hampshire.
In 1894, in
People ex Rel. Forsyth v. Court of
Sessions, 141 N.Y. 288, in holding that a trial court had
power to permanently suspend a sentence for reasons
dehors
the legality of the conviction, it was declared that such power
existed at common law, and hence prevailed in the state, this being
supported by a quotation from Hale's Pleas of the Crown. In
addition, it was said, referring to a state parol statute enacted
subsequent to the conviction, that such statute, while it conferred
no new or other power than that possessed at common law,
nevertheless imposed the duty to see to it that the power was not
lost to impose future punishment after the release if the condition
of suspension was violated.
In the cases cited in the margin the power was upheld upon the
rulings in
Commonwealth v. Dowdican's Bail, supra, and the
Forsyth case,
supra, or because of a practice
long prevailing. [
Footnote
2]
Leaving aside the question of the asserted duty to sustain the
doctrine because of the long established practice,
Page 242 U. S. 49
which we shall hereafter consider, we think it clear that the
long and settled line of authority to which we have previously
referred, denying the existence of the power, is in no way weakened
by the rulings which lie at the basis of the cases relied upon to
the contrary. In the first place, on the face of the opinion in
Commonwealth v. Dowdican's Bail, supra, it would seem
certain that that case treated the power as being brought by the
state legislation which was referred to within the domain of
reasonable discretion, since, by the effect of that legislation,
the right to exert such power, if not directly authorized, was at
least, by essential implication, sanctioned by the state law. In
the second place, insofar as the
Forsyth case,
supra, is concerned and its declaration as to what was the
common law upon the subject, the error thus fallen into is not only
demonstrated by what we have said as to the common law, but is
additionally shown by the fact that the quotation from Hale's Pleas
of the Crown, made in the opinion, contains clauses supporting the
opinion expressed as to the common law when in fact the clauses in
question, it would seem, were, by some error of citation,
mistakenly attributed to Hale. We say this because the clauses
referred to and attributed to Hale in the quotation are not found
in any edition of the Pleas of the Crown which we have been able to
examine, and it is stated by counsel for the United States that,
after diligent search, no passage containing the clauses has been
discovered, and the existence of any edition of the work containing
them is not pointed out by opposing counsel. But whether this be
well founded or not, as the conclusion concerning the common law
which the case expressed is, we think, obviously unsound, we are
unable, on the authority of such a mistaken view, to disregard the
long established and sound rule laid down in the many state cases
which we have quoted.
So far as the courts of the United States are concerned,
Page 242 U. S. 50
it suffices to say that we have been referred to no opinion
maintaining the asserted power, and, on the contrary, in the
opinion in the only case in which the subject was considered, it
was expressly decided the power was wanting.
United States v.
Wilson, 46 F. 748 (1891). It is true that, in the District of
Columbia, the existence of the power was maintained.
Miller v.
United States, 41 App.D.C. 52 (1913). But the unsoundness of
the grounds upon which the conclusion was based is demonstrated by
what we have previously said, and, aside from this, as the subject
was covered by an act of Congress conferring power of parol (Act of
June 25, 1910, 36 Stat. 864), the case requires no further
consideration.
4.
The duty to recognize the power as lawful because of its
exertion in practice by the state and federal courts, and the
implications arising therefrom.
There is no doubt that, in some states, without reference to
probation legislation or an affirmative recognition of any doctrine
supporting the power, it was originally exerted, and the right to
continue to do so came to be recognized solely as the result of the
prior practice.
State ex Rel. Gehrmann v. Osborne, 79
N.J.Eq. 430.
As to the courts of the United States, in one of the circuits,
the first, especially in the Massachusetts district, it is admitted
the practice has in substance existed for probably sixty years, as
the result of a system styled "laying the case on file." The origin
of this system is not explained, but it is stated in the brief
supporting the practice that courts of the United States have
considered the existing state laws as to probation, and have
endeavored in a certain manner to conform their action thereto. It
is true also that, in the courts of the United States, sometimes in
one or more districts in a circuit and sometimes in other circuits,
in many instances the power here asserted was exerted, it would
seem without any question, there being no objection raised by the
representatives of
Page 242 U. S. 51
the United States; indeed, it is said that, in Ohio, where the
power, as we have seen, was recognized as existing, it was exerted
by Mr. Justice Matthews of this Court when sitting at circuit, and
there and elsewhere, it is pointed out, the power was also exerted
in some instances by other judges then or subsequently members of
this Court. But yet it is also true that, numerous as are the
instances of the exertion of the power, the practice was by no
means universal, many United States judges, even in a district
where the power had been exerted, on a change of incumbency,
persistently refusing to exert the power on the ground that it was
not possessed. Indeed, so far was this the case that we think it
may be said that the exertion of the power under the circumstances
stated was intermittent, and was not universal, but partial.
As amply shown by the case before us, we think also it is
apparent that the situation thus described was brought about by the
scrupulous desire of judges not to abuse their undoubted discretion
as to granting new trials, and yet to provide a remedy for
conditions in cases where a remedy was called for in the interest
of the administration of the criminal law itself, as well as by the
most obvious considerations of humanity and public wellbeing --
conditions arising in the nature of things from the State of proof
in cases coming before them which could not possibly have been
foreseen and taken into consideration by the lawmaking mind in
fixing in advance the penalty to be imposed for a particular crime.
And the force of this conclusion will become more manifest by
considering that nowhere except sporadically was any objection made
to the practice by the prosecuting officers of the United States,
who, indeed, it is said, not infrequently invoked its exercise.
Albeit this is the case, we can see no reason for saying that we
may now hold that the right exists to continue a practice which is
inconsistent with the Constitution, since its exercise, in the very
nature of things,
Page 242 U. S. 52
amounts to a refusal by the judicial power to perform a duty
resting upon it, and, as a consequence thereof, to an interference
with both the legislative and executive authority as fixed by the
Constitution. The fact that it is said in argument that many
persons, exceeding two thousand, are now at large who otherwise
would be imprisoned as the result of the exertion of the power in
the past, and that misery and anguish and miscarriage of justice
may come to many innocent persons by now declaring the practice
illegal, presents a grave situation. But we are admonished that no
authority exists to cure wrongs resulting from a violation of the
Constitution in the past, however meritorious may have been the
motive giving rise to it, by sanctioning a disregard of that
instrument in the future. On the contrary, so far as wrong
resulting from an attempt to do away with the consequences of the
mistaken exercise of the power in the past is concerned, complete
remedy may be afforded by the exertion of the pardoning power; and,
so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation
legislation or such other means as the legislative mind may devise,
to such judicial discretion as may be adequate to enable courts to
meet, by the exercise of an enlarged but wise discretion, the
infinite variations which may be presented to them for judgment,
recourse must be had to Congress, whose legislative power on the
subject is, in the very nature of things, adequately complete.
While the conclusions just stated inevitably exact that the rule
which is before us be made absolute and that the mandamus issue,
nevertheless we are of opinion that the exceptional conditions
which we have described require that we exercise that reasonable
discretion with which we are vested to temporarily suspend the
issue of the writ so as to afford ample time for executive clemency
or such other action as may be required to meet the situation.
Page 242 U. S. 53
And, for this purpose, the issue of the writ will be stayed
until the end of this term, unless the United States otherwise
requests, when it will go as a matter of course.
Rule made absolute.
[
Footnote 1]
People v. Kennedy, 58 Mich. 372 (1885);
Gray v.
State, 107 Ind. 177 (1886);
People v. Blackburn, 6
Utah, 347 (1890);
State v. Voss, 80 Ia. 46 (1891);
People ex Rel. Benton v. Court, 8 N.Y.Crim.Rep. 355
(1892), affirmed in 66 Hun. 550 (1893);
In re Strickler,
51 Kan. 700 (1893);
People ex Rel. Smith v. Allen, 155
Ill. 61 (1895);
In re Markuson, 5 N.D. 180 (1895);
In
re Webb, 89 Wis. 354 (1895);
United States v. Folsom,
8 N.M. 651 (1896);
State v. Murphy, 23 Nev. 390 (1897);
Neal v. State, 104 Ga. 509 (1898);
Republic v.
Pedro, 11 Haw. 287 (1898);
In re Beck, 63 Kan. 57
(1901);
Miller v. Evans, 115 Ia. 101 (1901);
People ex
Rel. Boenert v. Barrett, 202 Ill. 287 (1903);
In re
Flint, 25 Utah 338 (1903);
State v. Dalton, 109 Tenn.
544 (1902);
Grundel v. People, 33 Colo.191 (1905);
Tuttle v. Lang, 100 Me. 123 (1905);
McCampbell v.
State, 116 Tenn. 98 (1905);
In re St. Hilaire, 101
Me. 522 (1906);
Tanner v. Wiggins, 54 Fla. 203 (1907);
State v. Hockett, 129 Mo.App. 639 (1908);
Ex Parte
Clendenning, 22 Okla. 108
(1908);
Ex Parte Cornwall, 223 Mo. 259 (1909);
Wall v.
Jones, 135 Ga. 425 (1910);
State v. Smith, 173 Ind.
388 (1909);
State ex Rel. Cary v. Langum, 112 Minn. 121
(1910);
In re Peterson, 19 Idaho 433;
State v.
Abbott, 87 S.C. 466 (1911);
Spencer v. State, 125
Tenn. 64 (1911);
State ex Rel. Dawson v. Sapp, 87 Kan. 740
(1912);
Daniel v. Persons, 137 Ga. 826 (1912);
State
v. Sturgis, 110 Me. 96 (1912);
State v. Talberth, 109
Me. 575 (1912);
Fuller v. State, 100 Miss. 811 (1912);
Ex Parte Bugg, 163 Mo.App. 44 (1912);
Snodgrass v.
State, 67 Tex.Crim.Rep. 615 (1912);
Roberts v.
Wansley, 137 Ga. 439 (1912);
Hancock v. Rogers, 140
Ga. 688 (1913);
Brabandt v. Commonwealth, 157 Ky. 130
(1914);
In re Hart, 29 N.D. 38 (1914);
Reese v.
Olsen, 44 Utah 318 (1914).
[
Footnote 2]
State v. Addy, 43 N.J.L. 113 (1881);
People v.
Mueller, 15 Chicago Legal News 364 (1883);
Commonwealth v.
Maloney, 145 Mass. 205 (1887);
Ex Parte Williams, 26
Fla. 310 (1890);
State v. Crook, 115 N.C. 760 (1894);
State v. Whitt, 117 N.C. 804 (1895);
People ex Rel.
Dunnigan v. Webster, 14 Misc. 617 (1895);
Weber v.
State, 58 Ohio St. 616 (1898);
Schaefer v. State, 7
Ohio Cir.Ct. (N.S.) 292 (1905);
In re Clara Lee, 3 Ohio
N.P. (N.S.) 533 (1905);
State v. Hilton, 151 N.C. 687
(1909);
State ex Rel. Buckley v. Drew, 75 N.H. 402 (1909);
State ex Rel. O'Connor v. Drew, 75 N.H. 604 (1910);
In
re Hinson, 159 N.C. 250 (1911);
State ex Rel. Gehrmann v.
Osborne, 79 N.J.Eq. 430 (1911);
People v. Goodrich,
149 N.Y.Supp. 406 (1914);
State v. Tripp, 168 N.C. 150
(1914);
State v. Johnson, 169 N.C. 311 (1915).
See
Greene v. State, 88 Ark. 290 (1908);
Joiner v. State,
94 Ark.198 (1910);
People v. Patrich, 118 Cal. 332 (1897);
Commonwealth ex Rel. Nuber v. Keeper, 6 Pa.Super.Ct. 420
(1898);
Commonwealth v. Dunleavy, 16 Pa.Super.Ct. 380
(1901).