On May 6, 1971, petitioners were convicted and sentenced for narcotics offenses committed in March 1971. They received the minimum five-year sentences under a provision that was mandatory and made the sentences not subject to suspension, probation, or parole. Effective May 1, 1971, that provision was repealed and liberalized by the Comprehensive Drug Abuse Prevention and Control Act of 1970. On petitioners' motion for vacation of their sentences and remand for resentencing, the Court of Appeals held that the new provisions were unavailable in view of the Act's saving clause, which made them inapplicable to "prosecutions" antedating the Act's effective date. Held:
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Part I of which BRENNAN and WHITE, JJ., joined. BRENNAN and WHITE, JJ., filed a statement concurring in the judgment, post, p. 611. DOUGLAS, J., filed a dissenting opinion, post, p. 612.
William P. Homans, Jr., argued the cause and filed a brief for petitioners. [410 U.S. 605, 606]
Deputy Solicitor General Lacovara argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Harriet S. Shapiro, and Jerome M. Feit. *
[ Footnote * ] Briefs of amici curiae were filed by Harvey A. Silverglate for Ralph De Simone; by Irwin Klein for Gerson Nagelberg et al.; and by Fred M. Vinson, Jr., and Robert S. Erdahl for seven women prisoners.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In this case we must decide whether a District Judge may impose a sentence of less than five years, suspend the sentence, place the offender on probation, or specify that he be eligible for parole, where the offender was convicted of a federal narcotics offense that was committed before May 1, 1971, but where he was sentenced after that date. Petitioners were convicted of conspiring to violate 26 U.S.C. 4705 (a) (1964 ed.) by selling cocaine not in pursuance of a written order form, in violation of 26 U.S.C. 7237 (b) (1964 ed.). The conspiracy occurred in March 1971. At that time, persons convicted of such violations were subject to a mandatory minimum sentence of five years. The sentence could not be suspended, nor could probation be granted, and parole pursuant to 18 U.S.C. 4202 was unavailable. 26 U.S.C. 7237 (d) (1964 ed. and Supp. V). These provisions were repealed by 1101 (b) (3) (A) and (b) (4) (A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of that Act was May 1, 1971, five days before petitioners were convicted.
Each petitioner was sentenced to a five-year term. 1 On appeal to the Court of Appeals for the First Circuit, [410 U.S. 605, 607] various points, not here relevant, were raised. Following affirmance of their convictions, petitioners moved that their sentences be vacated and their cases be remanded to the District Court for resentencing pursuant to Fed. Rule Crim. Proc. 35. In their motion they contended that the District Court should have considered "certain sentencing alternatives, including probation, suspension of sentence and parole" which became available on May 1, 1971. The Court of Appeals considered this motion as an "appendage" to the appeal. It held that the specific saving clause of the 1970 Act, 1103 (a), read against the background of the general saving provision, 1 U.S.C. 109, required that "narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense," and that "under the mandate of 109 the repealed statute, 7237 (d) is `[to] be treated as still remaining in force.'" 455 F.2d 1181, 1190, 1191. Accordingly, the Court of Appeals held that the trial judge lacked power to impose a lesser sentence.
We granted the petition for writ of certiorari, 407 U.S. 908 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F.2d 103 (CA9 1971). 2
At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. See Bell v. Maryland, 378 U.S. 226, 230 (1964); Norris v. Crocker, 13 How. 429 (1852). Abatement by repeal included a statute's repeal and re-enactment with different [410 U.S. 605, 608] penalties. See 1 J. Sutherland, Statutes and Statutory Construction 2031 n. 2 (3d ed. 1943). And the rule applied even when the penalty was reduced. See, e. g., The King v. M'Kenzie, 168 Eng. Rep. 881 (Cr. Cas. 1820); Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See generally Note, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121-130 (1972).
Section 1103 (a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:
Although petitioners' argument has some force, we believe that their position is not consistent with Congress' [410 U.S. 605, 609] intent. Rather than using terms in their everyday sense, "[t]he law uses familiar legal expressions in their familiar legal sense." Henry v. United States, 251 U.S. 393, 395 (1920). The term "prosecution" clearly imports a beginning and an end. Cf. Kirby v. Illinois, 406 U.S. 682 (1972); Mempa v. Rhay, 389 U.S. 128 (1967).
In Berman v. United States, 302 U.S. 211 (1937), this Court said, "Final judgment in a criminal case means sentence. The sentence is the judgment. Miller v. Aderhold, 288 U.S. 206, 210 ; Hill v. Wampler, 298 U.S. 460, 464 ." Id., at 212. In the legal sense, a prosecution terminates only when sentence is imposed. See also Korematsu v. United States, 319 U.S. 432 (1943); United States v. Murray, 275 U.S. 347 (1928); Affronti v. United States, 350 U.S. 79 (1955). 3 So long as sentence has not been imposed, then, 1103 (a) is to leave the prosecution unaffected. 4
We therefore conclude that the Court of Appeals properly rejected petitioners' motion to vacate sentence and remand for resentencing. The District Judge had no power to consider suspending petitioners' sentences or placing them on probation. Those decisions must ordinarily be made before the prosecution terminates, [410 U.S. 605, 610] and 1103 (a) preserves the limitations of 7237 (d) on decisions made at that time.
The courts of appeals that have dealt with this problem have failed, however, to consider fully the special problem of the parole eligibility of offenders convicted before May 1, 1971. The Seventh and Ninth Circuits hold that such offenders are eligible for parole. 5 The First Circuit in this case stated that petitioners were "ineligible for suspended sentences, parole, or probation." 455 F.2d, at 1191 (emphasis added).
In the federal system, offenders may be made eligible for parole in two ways. Any federal prisoner "whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of" his sentence. 18 U.S.C. 4202. Alternatively, the District Judge, "[u]pon entering a judgment of conviction . . . may (1) designate in the sentence of imprisonment imposed a minimum term, at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served, in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine." 18 U.S.C. 4208 (a). [410 U.S. 605, 611]
Section 1103 (a) clearly makes parole unavailable under the latter provision. As we have said, sentencing is part of the prosecution. The mandatory minimum sentence of five years must therefore be imposed on offenders who violated the law before May 1, 1971. And Congress specifically provided that 4208 (a) does not apply to any offense "for which there is provided a mandatory penalty." Pub. L. 85-752, 7, 72 Stat. 847. In any event, the decision to make early parole available under 4208 (a) must be made "[u]pon entering a judgment of conviction," which occurs before the prosecution has ended. Section 1103 (a) thus means that the District Judge cannot specify at the time of sentencing that the offender may be eligible for early parole.
That was the only question before the Court of Appeals, and it is therefore the only question before us. Petitioners' motion, on which the Court of Appeals ruled, requested a remand so that the District Judge could consider the sentencing alternatives available to him under the Comprehensive Drug Abuse Prevention and Control Act of 1970. That Act, however, did not expand the choices open to the District Judge in this case, and the Court of Appeals correctly denied the motion to remand. The availability of parole under the general parole statute, 18 U.S.C. 4202, is a rather different matter, 6 on which we express no opinion.
[ Footnote 2 ] See also United States v. McGarr, 461 F.2d 1 (CA7 1972); United States v. Fiotto, 454 F.2d 252 (CA2 1972).
[ Footnote 3 ] These cases involve determining whether a judgment in a criminal case is final for the purpose of appeal and determining whether the function of the trial judge has been concluded so that he may not alter the sentence previously imposed to include probation. The precise issues are, of course, different from the issue in this case. But these cases do show the point at which a prosecution terminates, and that is the issue here.
[ Footnote 4 ] Petitioners also argue that imposition of sentence precedes the suspension of sentence and the grant of probation. But the actions of the District Judge in imposing sentence and then ordering that it be suspended are usually so close in time that it would be unrealistic to hold that Congress intended so to fragment what is essentially a single proceeding.
[ Footnote 5 ] See n. 2, supra. We were informed at oral argument that "the Board of Parole is now considering as eligible for parole only defendants who have been sentenced in the Seventh and Ninth Circuits for narcotics offenses." Tr. of Oral Arg. 23. Our disposition of this case has no bearing on the power of the Board of Parole to consider parole eligibility for petitioners under 18 U.S.C. 4202. See infra, at 611.
[ Footnote 6 ] The decision to grant parole under 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated. Whether 1103 (a) or the general saving statute, 1 U.S.C. 109, limits that decision is a question we cannot consider in this case.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITE join Part I of the Court's opinion and would affirm for the reasons there expressed. They are also of the view that [410 U.S. 605, 612] 1103 (a) forecloses the availability of parole under both 18 U.S.C. 4202 and 18 U.S.C. 4208 (a), and that even if this were debatable as to 4202, the general saving statute, 1 U.S.C. 109, clearly mandates that conclusion as to that section. They therefore do not join Part II of the Court's opinion.
MR. JUSTICE DOUGLAS, dissenting.
The correct interpretation of the word "prosecutions" as used in 1103 (a) of the 1970 Act was, in my view, the one given by the Court of Appeals of the Ninth Circuit in United States v. Stephens, 449 F.2d 103, 105:
Judges do not make legislative policies. But in construing an ambiguous word in a criminal code, I would try to give it a meaning that would help reverse the long trend in this Nation not to consider a prisoner a "person" in the constitutional sense. Fay Stender, writing the introduction to Maximum Security, p. X, has described some of the "tremendously sophisticated defenses against the least increase in the enforceable human rights available to the prisoner." (E. Pell ed., Bantam Books 1973).
A less strict and rigid meaning of the present Act would be only a minor start in the other direction. But it is one I would take.
[ Footnote * ] Mr. Justice Holmes also said: