BRADLEY v. UNITED STATES

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Argument of William P. Homans, Jr.

Chief Justice Warren E. Burger: -- this morning in number 71-1304, Bradley against the United States.

Mr. Homans you may proceed whenever you’re ready.

Mr. William P. Homans, Jr.: Mr. Chief Justice and may it please the Court.

This is a petition for writ of certiorari to a final order of the Court of Appeals for the First Circuit which order appears on page 20 of the record appendix herein in response to a motion for an order vacating sentences and for remand and for motion for state of mandate which appear respectively on pages 16, 17, and 18 of the record appendix.

The motions filed by the petitioners in this case filed an order by the Court of Appeals affirming a judgment -- or judgment of conviction against the four petitioners on the merits following a prosecution for violation of 26 U.S. Code Section 4705 (a) now repealed, and 26 U.S. Code 7237 (b).

Chief Justice Warren E. Burger: Mr. Homans, I think you can help a little bit.

Is there anything in this record that affirmatively indicates that the District Judge did not consider probation?

Can you help me on that?

Mr. William P. Homans, Jr.: Yes, Your Honor.

The only thing that would appear in this record may it please the Court, is in the petition for certiorari.

I believe it appears on page -- in any event as I come to it, Your Honor.[Voice Overlap]

Chief Justice Warren E. Burger: Well, there’s nothing at Judge Rozanski’s order that would indicate the judgment and commitment doesn’t indicate --

Mr. William P. Homans, Jr.: No, Your Honor, not one way or the other.

Chief Justice Warren E. Burger: And ordinarily, a District Judge would not give any indication one way or the other, would he?

Mr. William P. Homans, Jr.: Even though, Your Honor, in the form of judgment in which is prescribed.

There’s no indication one way or another and off the record, Your Honor and I can’t go off the record.

We did file motions after the affirmance on the merits is distinguished from the so-called appendage to the appeal which is an issue here.

We did found motions in the District Court upon which the District Court took no action and I believe reference to those appears in the docket on page 2, February 8, motion for order vacating sentences and for remand of appellant filed motions for mandate filed in Court of Appeals.

That is the only indication, may it please the Court, that such a motion was filed in the District Court prior to what being filed in the Court of Appeals.

In any event, Mr. Chief Justice and members of the Court, this was a prosecution under the prior drug law which was repealed by Public Law in 91-513 effective May 1, 1971.

The indictment, which appears on pages 2 through 5 inclusive of the appendix, charged a conspiracy in several of the counts between four -- between March 4, 1971 and March 12, 1971 as well as charging under 4705 of former Title 26, several -- all of the defendants the substantive offense of giving away selling or the distribution of cocaine.

The indictment may it please the Court, also charge in counts, which are not material here, three of the four petitioners was carrying a firearm during the commission of felony.

The important aspect to this case so far as the indictment is concern is that the indictment alleged that the offense took place between March 4 and March 10, 1971, which was before May 1, 1971 the effective date of repeal as a result of 91-513 Public Law.

91-513 of the prior drug law, which contain among other statutes 26 U.S. Code Section 7237 (d), which appears again on pages three of the petitioner’s brief and provides as Your Honors are aware that upon conviction of offenses the penalty and I emphasize penalty for which is provided in sub-section (b) of this Section that the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, Section 4202 of Title 18.

The statutes otherwise providing for parole shall not apply.

I would emphasize in connection of later portions of the argument the language in (d) of 7237, which says, upon conviction of any offense, the penalty for which is provided in sub-section (b) referring that in sub-section (b) of 7237, that provides, whoever conspires to commit an offense described in 4705 (a) shall be imprisoned not less than five or more than 20 years.

And in addition, may be fined not more than $20,000.

Thus, may it please the Court, in accordance at least for the language of 7237 (d), the penalty appears in Section (b).

Again and I'm hesitant to read statutes except that the wording of the very statutes involved in it here is important to the decision in this case.

There were two saving statutes involved, may it please the Court in this case.

The first statute is the general saving statute, 1 United States Code Section 109, which I will read again with some -- which I’ll read with some emphasis.

The repeal of any statute shall not have the effect to release or extinguish any penalty, and I emphasize the word “penalty”, forfeiture, or liability incurred under such statute, and I emphasize the word “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 which I emphasize, for the enforcement of such penalty, forfeiture or liability.

That is the general saving statute, which has been in the statute book since late in the 19th century unchanged.

The specific statute, which appeared in Public Law 91-513 provides and again, I use some emphasis prosecutions.

I emphasized the word prosecutions for any of violation of law and I'm reading from page 4 of our brief occurring prior to the effective date of Section 1101 shall not be affected by the repeals or amendment made by such section or abated by reason thereof.

May it please the Court and Mr. Chief Justice?

We suggest here that Section 1103 (a), the specific saving statute which I have just concluded reading controls this case and under the doctrines of conflicts set forth in Hertz against Woodman and in Great Northern Railway against United States, both of which is cited in both briefs and in our brief on pages 9 through 13 of the petitioner’s brief.

We suggest that the conflict in wording between Section 1103 (a), the specific statute and Section 109, the general statute.

It is sufficient so that 1103 (a) is the only saving statute which is involved in this case.

Later on, if time permits we shall argue that even if the Court disagrees and 109 applies that the same results should still follow, but for the moment, I address myself Mr. Chief Justice and members of the Court to the effect of the specific saving statute.

Your Honor and Mr. Chief Justice and the Court will note that 1103 (a), the specific statute refers only to the word “prosecutions.”

It does not use the word -- words penalty, forfeiture, or liability, and the contention of the petitioners resolves itself, we suggest based upon the meaning of the word prosecution.

The Government urges that not withstanding the wording of the 7237 (d) that both probation, the discretion of the Court to order a suspension of sentence and finally a parole under 18 U.S. Code 4202 is part of the prosecution as the word is used in Section 1103 (a).

We disagree and there are reasons both from a policy point of view, as well as from a conceptual point of view, which we submit in support of our argument.

The cases of Affronti and Murray and finally Ellen Vogan appearing on pages -- which was cited on pages 14 of our brief and as cited as well in the United States’ brief.

All show that the -- a court does have authority following the imposition of sentence and prior to the execution of the sentence to grant probation and to suspend sentence.

Thus, although it did not take place in this case and it does not take place in most cases as the Solicitor General correctly points out.

In some case -- have the District Court here for example, sentenced these defendants to five years not suspended sentence assuming that he had the power to do so and there after before incarceration and while the case was not on appeal for example of the Court of Appeals.

If there have been some reasons for delay in execution of the sentence before execution of the sentence, he had then suspended sentence and granted probation.

He would have been within the authority which appears very plainly and Affronti and Murray and in a Second Circuit case Ellen Vogan where that actually took place.

The Government’s brief correctly points out that as Ellen Vogan says, normally, the imposition of probation and the suspension of sentence should normally take place at the time of sentence, but the Court has authority, nevertheless to suspend and to grant probation during that interval, if there is interval between imposition of sentence and suspend -- and excuse me execution.

Thus, a sentence being in 99% of the cases is permanent indicates which is also cited on page 14 of our case.

The judgment sentence has concluded, we suggest the prosecution as of the date, as of the time that it’s imposed.

Sentence, of course, as we suggest looks to the past or and the judgment looks to the past.

It looks to the determination of guilt.

It looks to the considerations, which the trial judge takes into account in determining the term of imprisonment or the amount of the fine.

It looks to the prior criminal record if any of the defendant or for that matter to whatever good works he has done in his life.

Whereas probation looks to the future -- probation as an act of grace looks to the opportunity which the defendant may have to rehabilitate himself while instead of being incarcerated through the grace of the court and through the act of grace which is the suspension of sentence and probation.

He finds himself to use the colloquial phrase on the street rather than incarcerated.

So that these are two separate concepts and the difference, may it please the Court, between probation and suspended sentences and act of grace on the one hand and the imposition of a term of years on the other hand as policy matters is consistent with what we’ve urged and that the Affronti and Murray and Ellen Vogan cases shall namely that there is a difference conceptually between the sentence and the discretion of the Court or its exercise in impose in granting probations and in suspending sentence.

Justice Byron R. White: And what about the parole?

Mr. William P. Homans, Jr.: With respect to parole --

Justice Byron R. White: On existing cases that were filed at the time the act was passed, sentences were being served under the old law, prisoner wouldn’t be subject to parole, is he under the new law?

Mr. William P. Homans, Jr.: This case, may it please the Court, I'm not trying to hedge, it does not reach that because of course we resentence after the repeal of the --

Justice Byron R. White: I know but your argument is that probation is a part of either prosecution or sentence.

Mr. William P. Homans, Jr.: Yes, sir.

As to parole, we suggest the question is even clearer under the language of this Court in Morrissey against Brewer which appears -- is cited on page 18 of our brief 408 U.S. 471 at page 480.

The Court said, parole arises after the end of the criminal prosecution including imposition of sentence.

Therefore, even more clearly than is the case in probation in the --

Chief Justice Warren E. Burger: Well, when we said that counsel, where we saying any more than day -- night follows day that was merely an observation about the chronological events?

Mr. William P. Homans, Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: But in each case, are probation and parole a sentence as pronounced, does it not?

Mr. William P. Homans, Jr.: The sentence has been pronounced.

Chief Justice Warren E. Burger: Yes, each under a sentence and the -- perhaps physically a difference is that the release begins immediately on probation and it’s deferred in the parole?

Mr. William P. Homans, Jr.: Yes sir, there are those similarities and of course by saying that the parole is -- the parole issue was strong here and the probation issue, we certainly don’t concede the probation issue.

But I would suggest Mr. Chief Justice that with respect to parole -- the determination for example of when parole shall be granted except in the exception provided by 4208 (a) is an Executive Order at least for federal purposes and an executive rather than a judicial party.

The Board of Parole that the matter except again in the case of the exception 4208 (a), the matter is not a judicial matter, it’s not in the control of the court, but it’s in control of the Executive body and this is consistent with the purpose of parole to see how the man does during the time he’s been incarcerated and taken into consideration his background.

And thereafter, give him the opportunity to remain in a form of custody and what the court called a variation in Morrissey against Brewer upon imprisonment.

But again, on the street under supervision of his parole officer until the time of his original term has finished.

So that in that sense, may it please the Court, it’s like probation and that he has a form of supervision by an executive – by an employee of the executive, the parole officer.

But that the determination is made completely separately from the original determination made by the Court as to the term of years or the fine in a few cases where they all find the term of years which the prisoner, which the defendant will serve.

So that again, may it please the Court, we would suggest that the concepts are entirely different whether you call parole of form of an act of grace or whatever terminology when puts on it.

Nevertheless, there are completely different considerations going into whether a man is paroled.

Then the sentence imposed upon him whether that sentence is to be suspended or served.

Now, coming back to that for the moment --

Chief Justice Warren E. Burger: Rather than being an act of grace, wouldn’t it be more accurate to say that it’s a matter of sound judicial discretion?

Mr. William P. Homans, Jr.: With all respect may it please the Court, parole except --

Chief Justice Warren E. Burger: No, I'm changing probation now -- probation.

Mr. William P. Homans, Jr.: Probation?

Oh!

yes -- yes sir, there’s no question.

But that the exercise of discretion to grant probation and to suspend sentence certainly it is in the exercise of some judicial discretion, but it comes, may it please the Court, after the court has already determined this man shall serve so many years if -- that this man shall serve so many years that the court then comes to the question of whether it shall exercise its discretion to grant probation coupled with a suspended sentence, or suspended suspension of a sentence which is already been ordered.

And as the Nagelburg indicates – case indicates on page which we cited on page 16.

If the unhappy in the other happy event the probation is eventually revoke and the sentence is ordered to be served at some future time during the period of the service of the probation term, then to quote the court, the original term although suspended “informs the judge who revokes probation of what the trial judge thought in appropriate prison term would be.”

In that case, which is helpful for our purposes in that case one judge had imposed the original sentence and suspended it.

A second judge revoked the probation and ordered service of the sentence and the concept by the -- that the Court of Appeal’s voice in that case was that that what was to be done by the second judge so far as imprisonment was concerned was already decided by the first judge indicating again the separation between the two concepts.

Justice William H. Rehnquist: Mr. Homans?

Mr. William P. Homans, Jr.: Yes, may it please.

Justice William H. Rehnquist: If you put it in terms of more or less lay understanding rather than strictly legal concepts, wouldn’t it be fair to say that when one says a person is going to be -- can be sentenced to a life imprisonment without possibility of parole that the reference to without possibility of parole is really a modification or an adjective describing the form of sentence?

Mr. William P. Homans, Jr.: Perhaps, to a lay person not understanding the difference in concepts without possibility of parole, Your Honor would normally as I understand have resulted from authority of a statute such as in this case 7237 (d) for the Court to make that order.

And again, may it please the Court?

Similarly to the power of the Federal Court and given by 4208 (a) to use statutory authority either to order that parole to be granted as the case in 4208 (a) at an earlier time, whereas in the case, Your Honor poses to say that under again under statutory authority that no parole shall ever be given.

Again, may it please the Court, the judiciary or the particular judges involved in that decision, but the decision now, I would suggest is not part of the -- is not part of the sentence for the purposes we’re dealing with sentence here, may it please the Court.

I agree Your Honor, and there is perhaps a logical inconsistency between the case Your Honor poses and the position we take here which is also present as I say in the case of 4208 (a).

But we would suggest that in the bases of the language of this Court in the Berman case, in the Roberts case, and the many other cases, which have dealt with the differences between either probation or parole on the one hand and the power of the Court to sentence to a term of years and the fine or a fine on the other that so far as the word “prosecution” is concerned in Section 1103 (a).

The specific saving statute that the prosecution has ended -- the prosecution has ended, may it please the Court with the imposition of sentence regardless of what takes place afterwards in terms either of the exercise of probation or suspension of discretion -- the suspension of sentence discretion or even later the grant or refusal parole by a Parole Board.

I apologize for a lot rather long, we did answer to it.

Justice Thurgood Marshall: Do you recognize the difference that probation is judicial and parole as executive?

Mr. William P. Homans, Jr.: At least in the federal jurisdiction, Your Honor and certainly in old jurisdiction it’s an administrative decision although in some state jurisdictions --

Justice Thurgood Marshall: I am comfortable this is federal.

Mr. William P. Homans, Jr.: Yes, Your Honor.

Certainly here --

Justice Thurgood Marshall: Parole is strictly executive.

Mr. William P. Homans, Jr.: Strictly executive, yes Your Honor.

Justice Thurgood Marshall: And do you also say, the probation is strictly judicial?

Mr. William P. Homans, Jr.: A judicial exercise of discretion, yes, Your Honor.

Justice Thurgood Marshall: Well, why is that not a part of the sentence?

Mr. William P. Homans, Jr.: The reason, may it please, it’s not part of the sentence is because the judge has already at the time that he makes the decision conceptually.

At the time he makes the decision to suspend sentence and to grant probation has made the decision that this man shall serve two or three or four years and the man is liable to serve that time whether he is given probation or a suspended sentence or not.

He is liable --

Justice Thurgood Marshall: Which mean it’s a sentence.

Mr. William P. Homans, Jr.: It means that it’s a sentence.

Justice Thurgood Marshall: And the probation is a part of the sentence.

Mr. William P. Homans, Jr.: I would not say so, Your Honor for the purposes of the statute here which --

Justice Thurgood Marshall: Well, suppose that judge gives in five years in another type of case it’s not the dealt case.

Mr. William P. Homans, Jr.: Yes, sir.

Justice Thurgood Marshall: And within the statutory period the court amends it, “I made a mistake, I may cut it to three.”

That’s a sentence.

The second one is, the sentence, isn’t it?

Mr. William P. Homans, Jr.: The second one is reduction, as I understand it under Rule 35, which is quite different.

Justice Thurgood Marshall: Is it a sentence?

Mr. William P. Homans, Jr.: Yes sir, that goes into the sentencing process -- the reduction of sentence.

Justice Thurgood Marshall: Well, isn’t anything the judge does after conviction within the sentencing part?

Mr. William P. Homans, Jr.: No, sir.

I would --

Justice Thurgood Marshall: Why not?

Mr. William P. Homans, Jr.: It may be part of the “sentencing process” using the words in the rather broad sentence, but I would suggest that what is the issue here is the meaning of the word prosecution and that --

Justice Thurgood Marshall: Well, do you agree that the prosecution includes sentencing?

Mr. William P. Homans, Jr.: It includes --

Justice Thurgood Marshall: Do you agree on that?

Mr. William P. Homans, Jr.: It includes sentence, yes, Your Honor.

Justice Thurgood Marshall: Well, isn’t that the end of your case?

Mr. William P. Homans, Jr.: I --

Justice Thurgood Marshall: I thought you said a minute ago the probation was a part of the sentencing?

Mr. William P. Homans, Jr.: No, sir.

I said, may it please the Court, that it is part of the -- in using the language rather loosely, normally part of the sentencing process, but as we’ve indicated, may it please the Court, in -- by the citation of Affronti and Murray and Ellen Vogan which appear on pages 14 of the -- page 14 of the brief.

The sentencing -- sentence may take place and be followed after an interval of time under Section 3651, which is the probation statute.

It may be followed after an interval of time even though the sentence was not originally suspended and probation not originally granted.

Sentence may be followed after 10 days or a month or whatever interval of time before execution occurs.

And certainly from that point of view, may it please the Court, the sentence has taken place at the time that the man was told “you were sentence to five years in jail period” without any further words of the court as to whether the sentence is suspended or probation given then to give the aggress of the hypothesis Your Honor your post.

If the judge after, for example of month prior to the time that the sentence is executed, thinks to himself of what perhaps the sentence should’ve been suspended at the end of that 30 days providing execution of the sentence has not started.

He has the power and the authority to exercise his discretion to suspend and grant probation for a period of years.

Chief Justice Warren E. Burger: Suppose, this record showed that at the time of sentencing there have been arguments urging probation with all the usual reasons that puts you advanced --

Mr. William P. Homans, Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: -- and the judge said, I have and this is all on the record and in the record when the case comes on review, I have considered the arguments and the reasons advanced for a probation and I conclude that this is not a proper case for granting probation because of the past history of this defendant, where would you be then?

Mr. William P. Homans, Jr.: If that had taken place, may it please the Court, I think it is unlikely that we would be here although --

Chief Justice Warren E. Burger: Now, that all of those events have preceded the sentence, have they not?

Mr. William P. Homans, Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: Enlighten me on how that then is not part of the sentencing process?

Mr. William P. Homans, Jr.: Had -- as I say, Mr. Chief Justice using the words sentencing process as imposing all of the matters which the trial judge is considering either at the time he imposes the sentence of the years or during that time including the interval following that.

That is part of the sentencing process but as the words is used.

The sentence is the judgment in the Berman case which we cite.

The prosecution, may it please the Court, has terminated with the judgment of the court imposing a sentence of years and what takes place after that so far as probation, suspended sentence or parole, we would suggest does not part of the “prosecution.”

Chief Justice Warren E. Burger: But in my hypothesis, the events had taken place before the sentence and the judgment.

Mr. William P. Homans, Jr.: The attorneys who’ve made the arguments, may it please the Court, and obviously the judge has considered them.

But from the point of view of the statute this has been interpreted.

This is the difficulty if I can interrupt myself for a moment with this -- not the difficulty as many cases of turn on statutory language, but we suggest very strongly that whatever may be the practical effect and what every different ways judges and lawyers may deal with the questions involved here, that from the point of view of the way the statutes read in particularly the wording the statute in so far as one statute refers the prosecutions and another statute refers to penalty forfeiture liability that this is a question of -- in this case as to how the statutes are to be interpreted I would ask the Court, thank you.[Voice Overlap]

I would ask the Court to consider the arguments in the brief with respect to the applicability of 1 United States Code Section 109, I’ve not made that argument this morning.

Chief Justice Warren E. Burger: Very well.

Mr. Lacovara.

Argument of Lacovara

Mr. Lacovara: Mr. Chief Justice and may it please the Court.

I must confess to be somewhat perplexed by the arguments that have been advanced including some of the arguments that have been made in lower court decisions on the question that was before the Court this morning.

As the Government sees the case, it does not involve for the Court’s decision the question, what is the nature of the probation decision or the probation process does not involve the question of the exercise Executive discretion to grant parole?

What the Court has before it in our view, is a relatively straightforward question of legislative of intent.

This is a case involving two saving statutes and the question is not what is the nature of probation or not what is the nature of parole.

But rather when Congress has said that by reason of engaging in certain illegal conduct, a person is absolutely ineligible for probation and cannot even be considered for parole that legislative direction is part of punishment when engaging in that prohibited conduct if the answer to those -- to that question is yes, if that absolutely legislative bar to the exercise of judicial discretion or of Executive Clemency is considered a penalty or punishment, then we submit that the answer to the ultimate question before the Court this morning is clear, that the saving statutes both saving statute in Title 1 and the specific clause that Congress included in the 1970 Act operate to preserve these bands on probation and parole.

Therefore, I will not --

Chief Justice Warren E. Burger: Well, does this case involve parole?

Mr. Lacovara: That while the issues that could be raise Mr. Chief Justice is whether the parole question is right.

The four petitioners in this case have just been sentence, they’re still on bail, I understand and although the probation decision is -- or the inability to qualify for probation is clearly raise.

There is a question about the rightness of the parole decision.

The Government acquiesced in the petition for certiorari primarily because of the importance of the parole decision and I would submit that the issue is a live one because the way the system actually operates, the Board of Parole is now considering as eligible for parole.

Only defendants who have been sentenced in the Seventh and the Ninth Circuits or narcotics offenses because the Courts of Appeals in the Seventh and Ninth Circuits upheld that people sentence after of May 1, 1971 are to be considered eligible.

Since the Court of Appeals for the First Circuit, as well as other Circuit Courts have had held that parole eligibility is not eliminated.

The Parole Board will not be considering any people sentenced in those Circuits for a parole.

The petitioners filed a motion before the First Circuit to remand their case to the District Judge for him to exercise probation discretion and also the to certify whether they should be eligible for parole if the District Judge has the power to determine that they are eligible for a parole, the Parole Board -- and certifies is on his judgment, the Parole Board will respect that judgment.

The First --

Chief Justice Warren E. Burger: Do have any way of knowing that the District Judge did not consider and reject probation?

Do we know one way or the other?

Mr. Lacovara: The sentencing hearing is not before the court, that transcript is not available.

We have suggested in our brief that there is a real possibility that the petitioners in this case may have been given probation if Rozanski had the power to do that.

And we point simply to the fact that he did sentenced them to the minimum sentence that was mandatory under the pre-1970 law and also for the three of the petitioners also violated the Gun Control Act and Judge Rozanski placed the three petitioners who were convicted on those offenses on probation and therefore, we’ve suggested that since the record isn’t clear that he has made a conscious decision on probation if Judge Rozanski has the power that petitioners press for, then we think that the remedy that they sought in the Court of Appeals remand for the purposes of allowing him to consider probation or parole would be inappropriate remedy.

The question, as we see it is basically whether the ineligibility for probation and parole which was unquestionably contained in the Internal Revenue Code Section 7237 (d) until it’s repeal in May of 1971 constituted a part of the penalty for engaging in sales of narcotics, the offense of which these petitioners have been convicted.

Now, the interpretation of the saving clauses that are before the Court will be the ultimate question, but we think in order to apply the language of the saving clause is it’s important to begin by determining what is the nature of the no probation, no parole decision that Congress has made for narcotics traffickers.

In our brief, we’ve said out in some detail the legislative history surrounding the introduction of the no parole, no probation directive in the statute and we think that it underscores quite vividly that Congress was adding an additional penalty in the sense that Mr. Justice Rehnquist before said a life sentence without parole is a modified penalty that is more severe than a simple life sentence.

At least if we submit as exactly what Congress has shown it was doing when it added the no probation, no parole provisions and applied them to specific kinds of illegal conduct violative of the narcotics laws.

The no probation and no suspension of sentence provisions first came in to the narcotics laws in the 1951 Boggs Act which then applied only to smuggling of heroine to the United States and the ban on judicial -- judicial grant of probation or the suspension of the sentence applied in 1951 only to second or subsequent offenders.

In 1956, however, in the Narcotic Control Act of that year which is generally recognized to have been a very severe and harsh statute.

Congress after hearing considerable amount of testimony about the narcotics statute tighten the screws and what Congress did was to apply the no Probation and no Parole -- apply the No Probation Provision not only to second offenders involved in narcotics smuggling, but applied the ban on probation even to first offenders and applied that prohibition not just to smugglers, but to any one who dispensed narcotics in violation of the Federal Law.

In addition in 1956, Congress added the ban on parole making an offender convicted of these narcotics violations absolutely ineligible for parole.

Congress denied District Judges the discretion to place people on probation and it denied the Parole Board the discretion to release them before the expiration of their sentence.

Now, we’ve quoted some of the relevant excerpts from the legislative history surrounding the 1956 legislation at pages 12 through 14 of our brief.

And the very language that was used by the witnesses and by the congressional committees recommending this legislation shows that Congress intended these prohibitions to be an inherent and intrinsic part of the penalties for engaging in narcotics trafficking.

Thus, not only is there a mandatory minimum sentence of five years for trafficking in narcotics which all Courts of Appeals and petitioners agree has been saved by the saving statutes for pre-repeal violations even if they’re not sentenced until after the repeal of the 1956 Act.

But the no probation, no parole directive by Congress was similarly intended to be part of the penalty that was to attach automatically upon conviction of these offenses just as the mandatory minimum sentence.

Now in 1970, when Congress passed the Comprehensive Drug Abuse and Control Act, and repealed the various scattered provisions of the narcotics laws, it eliminated the absolute ineligibility for probation or parole that existed under the 1956 legislation.

But it did so, in a somewhat qualified way and for reasons which are important in answering the question before the Court.

The decision to eliminate the absolute ineligibility for probation and parole that was contained in Section 7237 (d) was not, we submit an exercise of legislative clemency.

It was not an effort to get soft on the narcotics problems.

What Congress was doing in reorganizing the entire drug control structure was to make a somewhat more refined classification.

Even under the 1970 legislation, Congress has provided a category of narcotics offenders who will not be eligible for probation and who will not be eligible for parole.

In fact, over the opposition of certain witnesses, Congress even expanded that absolute probation.

As I mentioned, the 1956 statutes have applied only to trafficking in narcotics.

Section 848 now of Title 21 which punishes engaging in a continuing criminal enterprise in the drug field applies to engaging in any kind of drug trafficking including trafficking in LSD, amphetamines, and barbiturates.

In that statute, Congress has raised the mandatory minimum penalty from five years to 10 years has increased the outer limit from 20 years as under the statute which petitioners violated to life imprisonment added in additional special parole term increased the fine that could be imposed and provided for forfeiture.

The reason I'm going in to these statutes which concededly are not directly applicable to petitioners because they didn’t become effective until two months after they committed their violations, is that it shows what Congress was trying to do in 1970.

It was not trying to do what petitioners’ argument would have the effect of doing and that is to wipeout to remit in part some of the very severe penalties that attached to people who violated the pre-1970 laws.

What Congress was doing was redirecting its focus and refining the categories of people who would be punished in a severe way.

Justice Harry A. Blackmun: Mr. Lacovara just a matter of curiosity, I know often legislation is made effective in the future, but why -- why so long here or some seven months I think it was almost?

Mr. Lacovara: Well, as I mentioned Mr. Justice.

This was a reform or revision of the entire narcotics structure it affected statutes that were scattered throughout the United States Code and it also provided for extensive administrate changes, it enforcement responsibilities were being transferred a whole new administrative system of classifying different dangerous drugs into various schedules was being setup.

So, Congress provided that long lead time of six months in order to make sure that all of the actors in the system would have an adequate amount of time to familiarize themselves with the changes that were being made and to bring the operation machinery into lines so that it would be effective -- effective and a practical as well as illegal sentence on May 1, 1971.

Justice Harry A. Blackmun: Is this kind of statute is rather hard on the individual concerned when May 1 comes down and forms the barriers --

Mr. Lacovara: Well, no the -- I think that turns it around up until May 1, 1971 the provisions of the old law were enforced.

Those were the provisions that the petitioners violated and it’s unquestioned that those provisions were the ones and we contend still are the ones that providing minimum sentence of five years in jail and forbade the imposition -- the suspension of sentence for the granted probation or consideration for parole.

So, we’re not talking about retroactively applying the --

Justice Harry A. Blackmun: Well, precisely that’s my point that Congress has made its determination on October, made it effective and that’s May, and this individual and others are caught in that interim period, but that’s neither here today.

Mr. Lacovara: Well, I think it is here or there because that is the dilemma that the lower courts have been wrestling with.

There is clearly and anomaly at the very least in having to draw a line and saying that someone who committed a violation two months before the effective date is not going to be allowed consideration for probation.

It’s not going to be eligible for parole, but somebody who commits this violation after May 1 will be eligible for these considerations unless he is engaged in the continuing criminal enterprise.

But this is really an example of Congress having to draw a line somewhere.

It could’ve draw in a line in an earlier stage, but we submit that legislate of history shows that it didn’t.

Justice William H. Rehnquist: The Ninth Circuit view doesn’t avoid the necessity of line drawing, does it?

Mr. Lacovara: No, sir.

That’s as we underscore in our brief there is just as much challenge in the line that they’ve draw.

In a Parole Board case -- the Noriega case which we’ve cited on the page 31 of our brief, footnote 18.

The Ninth Circuit has -- excuse me that’s not, Noriega is page 23 and 24.

The Ninth Circuit has drawn the line at the date of sentencing irrespective of the date the violation took place.

The Ninth Circuit says, if your sentence after May 1, 1971, you’re eligible for probation or parole, but if as might’ve happen in this case, petitioners were tried more promptly and were sentenced immediately.

The Ninth Circuit would say, even though the new law has come into effect nevertheless, these petitioners are not eligible for probation or for parole.

What we say is that, the Ninth Circuit has substituted its judgment on where the line should’ve been draw or might’ve been draw for what we think is the legislative judgment and choosing among options that are otherwise reasonable is emphatically a legislative judgment.

But in this kind of setting, we think it’s a particularly reasonable judgment.

A policy underlying the ex post facto clause for example is one that makes the consequences of conduct turned not on the time -- the conduct is adjudicated or sentenced, but on the time the conduct was committed and this we say exactly what Congress has done.

If you committed your violation under the old law, the old law applies.

If you committed a violation of the new law, the new statute applies.

The saving statutes are reflective of that national policy.

The basic saving statute in Title 1 dates from 1871 and it provides what we think is fundamental national policy on the interpretation of the effectiveness of statutes.

It provides in very broad terms of the repeal of any statute shall not have the effect to release or extinguish any penalty forfeiture or liability incurred under such statutes.

So, here we come back to the date upon which the penalty was incurred which would be the date of violation unless the repealing act expressly so provides will clearly express the 1970 Act has not expressly provided for the extinguishment of what we think is part of the penalty for these violations.

From a contrary, the statute is to be treated as still remaining enforce for preserving a progress, civil action or prosecution to enforce that penalty.

Now, there’s been considerable amount of discussion in the briefs about what those words penalty or liability or forfeiture mean.

In the first case that this Court had to consider that question in Ritzinger case 1888.

The Court applied the statute to a criminal case which had -- by the way the statute there had been repealed before the indictment was returned.

And the repealing statute itself just as in our case had its own saving clause which was much narrow than the general saving clause.

It applied only by its terms to saving prosecutions that had already been commenced at the time of the repeal.

This Court nevertheless said that the general saving statute applies in addition that that narrower focus in the specific saving clause is not to be construed as an expressed probation -- provision to the contrary.

And that the words “penalty, forfeiture, or liability” and this is quoted on page 26 of our brief were intended by Congress to be synonymous with the term “punishment” and were used by Congress to include all forms of punishment for crime.

That’s why we submit today that the general saving statute 1 United States Code 109 operates to save the applicability of the No Probation, No Parole Provisions of Section 7237 (d).

These we believe and we’ve argue this in our brief were part of the penalty that Congress created for this violations and as part of the penalty or the punishment they are save by the general saving statute.

The specific saving clause also points in the same direction as in Ritzinger and the great Northern Railway case which also involved were limited specific saving clause which this Court said did not cut back on the general saving clause and allowed a subsequently return criminal indictment to be prosecuted.

The specific saving clause here reiterates the same national policy although language is different, we think the trust is the same and Congress in the specific saving clause says, the prosecutions for any violation of law occurring prior to the date.

Mr. Justice Blackmun here again, is the congressional focus on the date of the violation although that is not the only focus that Congress might have provided for.

But these prosecutions shall not be affected by the repeals or abated by reason thereof.

Now, it doesn’t take much extravagant argument to show that the punishment from offense is part of the prosecution for it.

Prosecution is not just an academic exercise and certainly as I believe petitioners have conceded and the lower courts have certainly held the sentence prescribed for a violation is part of the prosecution for that violation within the meaning of this kind of saving clause.

And if our interpretation of the legislative history is correct that the No Probation, No Parole Provisions are part of the penalty that operate automatically -- attached automatically upon conviction, then those probations are part of the sentence or part of the prosecution for the offenses that took place and are preserved.

I think one illustration of the point that I'm trying to make that the ban on probation and parole is part of the penalty, part of the punishment that Congress has fixed for violation of the statute is that the Courts of Appeals are now virtually unanimous in holding that a guilty plea entered to one of these narcotics offenses is involuntary because without sufficient knowledge, unless the defendant who pleaded guilty not only knew about the minimum sentence -- the mandatory minimum sentence, but also knew that upon conviction, he would be ineligible for probation and would be ineligible for parole.

And the rational the Courts of Appeals have followed in reaching that result is that unlike certain other collateral consequences of criminal conviction, the ineligibility for probation and parole are attached to the very violations itself in the same sense that the prison sentence is a consequence of the plead.

For all these reasons, we submit that the Court of Appeals for the First Circuit has reached the proper result in holding that violations of the pre May 1, 1971 drug laws are to be punished as if those laws are still in effect and for all legal purposes under the saving statutes they are to be considered enforced.

Chief Justice Warren E. Burger: Very well, thank you Mr. Lacovara.

Thank you Mr. Homans.

The case is submitted.