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Escoe v. Zerbst

U.S.
May 20, 1935
295 U.S. 490 (1935)

Summary

holding that a statute's use of word "shall," though not controlling, is significant as indicating intent that statute should be mandatory.

Summary of this case from National Feder. of Republican Assemblies v. U.S.

Opinion

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

No. 773.

Argued May 6, 1935. Decided May 20, 1935.

1. The federal District Court, acting on the request of a probation officer based on information received by him concerning a probationer's delinquency, is without power to revoke a suspension of sentence and commit the probationer to prison to serve the sentence, where the probationer was not "taken before the court" and afforded an opportunity to be heard in answer to the charges. Act of March 4, 1925, c. 521, § 2, as amended. P. 492. 2. This privilege of the probationer is not a right guaranteed by the Constitution, but is based upon the Act of Congress governing the procedure in such cases. P. 492. 3. The requirement of the Act of March 4, 1925, c. 521, § 2, that, upon the arrest of a probationer, he "shall forthwith be taken before the court," is mandatory in meaning as well as in form. P. 494. 4. Habeas corpus is a proper remedy to obtain the release of a probationer who has been committed without an opportunity to be heard. His discharge will be without prejudice to his arrest and commitment as a result of subsequent proceedings conforming to the statute. P. 494. 5. The contention that the district judge, in revoking probation on an ex parte showing in this case, has plainly indicated how his discretion will be exercised if a hearing is granted, is a non sequitur and affords no basis for denial of a hearing. P. 494. 74 F.2d 924, reversed.

CERTIORARI, 294 U.S. 704, to review a judgment affirming an order of the District Court dismissing an application for a writ of habeas corpus.

Mr. Seth W. Richardson submitted for petitioner.

Mr. Sanford Bates, with whom Solicitor General Reed was on the brief, for respondent.


Petitioner was convicted of a crime in the United States District Court for the Eastern District of Texas after indictment and a plea of guilty. He was sentenced, October 10, 1932, to imprisonment for four and a half years in the Penitentiary at Leavenworth, Kansas. On the same day the sentence was suspended for five years upon conditions of probation, and the defendant (the petitioner in this court) was placed in charge of the District Probation Officer for that length of time. One of the conditions was that the probationer would refrain from the violation of any state or federal penal laws. Another was that he would live "a clean, honest and temperate life."

In July, 1933, information was conveyed to the District Probation Officer that petitioner had broken these conditions. In a letter written by his father he was charged with drunkenness and the forgery of two checks. The officer made report of this information to the District Judge and requested a revocation of the order for suspension of sentence. On July 29, 1933, the District Judge issued a mandate for a warrant of arrest. On August 5, he signed an order that the suspension be revoked and that the defendant be committed to prison to serve the stated term. Upon arrest under the warrant the defendant was not brought by his custodian before any court or judge. He was transported at once to the penitentiary at Leavenworth, Kansas, and there imprisoned. Later, in December, 1933, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas, contending that his imprisonment was unlawful for the reason that probation had been ended without the opportunity for a hearing made necessary by statute. The District Judge dismissed the application for the writ, and the Circuit Court of Appeals for the Tenth Circuit affirmed his order. 74 F.2d 924. A writ of certiorari issued from this court.

Upon the suspension of sentence in October, 1932, the applicable statute made provision as follows:

"At any time within the probation period the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed." Act of March 4, 1925, c. 521, § 2, 43 Stat. 1260; 18 U.S.C. § 725.

An amendment of the statute in June, 1933 (Act of June 16, 1933, c. 97, 48 Stat. 256; 18 U.S.C. Supp. § 725) permits the execution of the warrant by a United States marshal as well as by a probation officer, but does not change the procedure otherwise. Under the statute as amended as well as in its original form, the probationer "shall forthwith be taken before the court." This mandate was disobeyed. The probationer, instead of being brought before the court which had imposed the sentence, was taken to a prison beyond the territorial limits of that court and kept there in confinement without the opportunity for a hearing. For this denial of a legal privilege the commitment may not stand.

In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose. Burns v. United States, 287 U.S. 216. But the power of the lawmakers to dispense with notice or a hearing as part of the procedure of probation does not mean that a like dispensing power, in opposition to the will of Congress, has been confided to the courts. The privilege is no less real because its source is in the statute rather than in the Fifth Amendment. If the statement of the Congress that the probationer shall be brought before the court is command and not advice, it defines and conditions power. French v. Edwards, 13 Wall. 506, 511. The revocation is invalid unless the command has been obeyed.

We find in this statute more than directory words of caution, leaving power unaffected. This is so if we consider the words alone, putting aside for the moment the ends and aims to be achieved. The defendant "shall" be dealt with in a stated way; it is the language of command, a test significant, though not controlling. Richbourg Motor Co. v. United States, 281 U.S. 528, 534. Doubt, however, is dispelled when we pass from the words alone to a view of ends and aims. Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. The charge against him may have been inspired by rumor or mistake or even downright malice. He shall have a chance to say his say before the word of his pursuers is received to his undoing. This does not mean that he may insist upon a trial in any strict or formal sense. Burns v. United States, supra, at pp. 222, 223. It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper. Burns v. United States, supra. That much is necessary, or so the Congress must have thought, to protect the individual against malice or oppression. Almost equally it is necessary, if we read aright the thought of Congress, for the good of the probation system with all its hopes of social betterment.

If these are the ends to be promoted by bringing the probationer into the presence of his judge, the Act is seen at once to be mandatory in meaning as well as mandatory in form. Statutes are not directory when to put them in that category would result in serious impairment of the public or the private interests that they were intended to protect. French v. Edwards, supra; Lyon v. Alley, 130 U.S. 177, 185; Erhardt v. Schroeder, 155 U.S. 124, 128, 130. Such is the situation here. When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint. It is beside the point to argue, as the Government does, that in this case a hearing, if given, is likely to be futile because the judge has made it plain how his discretion will be exercised in that already he has canceled the suspension on the strength of an ex parte showing. The non sequitur is obvious. The judge is without the light whereby his discretion must be guided until a hearing, however summary has been given the supposed offender. Cf. Snyder v. Massachusetts, 291 U.S. 97, 116. Judgment ceases to be judicial if there is condemnation in advance of trial.

We hold that the attempted revocation is invalid for defect of power, and that, the suspension still continuing, the petitioner is entitled to be discharged from his confinement.

The discharge is without prejudice to his arrest and commitment as a result of subsequent proceedings conforming to the statute.

The judgment is reversed and the cause remanded with instructions that the writ must be sustained and the prisoner discharged.

Reversed.


Summaries of

Escoe v. Zerbst

U.S.
May 20, 1935
295 U.S. 490 (1935)

holding that a statute's use of word "shall," though not controlling, is significant as indicating intent that statute should be mandatory.

Summary of this case from National Feder. of Republican Assemblies v. U.S.

In Escoe the Court considered the propriety of a judge's order summarily revoking a criminal defendant's probation without a hearing.

Summary of this case from U.S. v. Thompson

noting that the term "shall" in a statute is ordinarily "the language of command"

Summary of this case from Gilda Industries, Inc. v. U.S.

In Escoe v. Zerbst, 295 U.S. 490, 492-493, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935), the Supreme Court held that probation is not a right guaranteed by the Constitution but "comes as an act of grace to one convicted of a crime."

Summary of this case from Menechino v. Oswald

In Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 819, 79 L.Ed. 1566, the Supreme Court discharged on habeas corpus a probationer whose suspension of sentence had been revoked and who had been committed to prison to serve a stated term without ever having been brought before any court or judge, and without having been accorded an opportunity of testifying or presenting any defense in his behalf.

Summary of this case from Strickland v. United States

In Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566, the Court held that "(p)robation or suspension of sentence comes as an act of grace to one convicted of a crime * * *". To the same effect is Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 82 L.Ed. 204. And certainly Congress was aware that the federal courts have consistently held that a plea of guilty is itself a conviction.

Summary of this case from United States v. Rosenstengel

In Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L.Ed. 1566, (1935), the court said that under statute the petitioner was entitled to a hearing before his probation was revoked.

Summary of this case from Marquardt v. Gagnon

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the Supreme Court dealt with Escoe, who had been placed on probation when a sentence to imprisonment was suspended after conviction of an offense in a federal court. Thereafter the court issued a warrant for the arrest of Escoe and made an order revoking suspension of his sentence.

Summary of this case from United States v. Follette

In Escoe, it was held that the provisions of the Federal Probation Act required notice and a hearing prior to revocation of probation.

Summary of this case from United States v. Kenton

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the Supreme Court indicated that while the petitioner was entitled to be heard, this does not mean he may insist on a trial in any formal sense.

Summary of this case from Lavendera v. Taylor

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935) the court, while pointing out that a Federal statute required a probation revocation hearing for Federal probationers, also pointed out that no constitutional right is involved and that probation or suspension of sentence comes as an act of grace to one convicted of a crime.

Summary of this case from Hamrick v. Boles

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, the Supreme Court construed a similar provision of the Federal Probation Act (U.S. Code, title 18, sec. 725, 18 U.S.C.A. § 725) which directs that a probationer who is arrested for a violation of the terms of probation "shall forthwith be taken before the court".

Summary of this case from In re Tate

In Escoe v. Zerbst, 295 U.S. 490, 492-493 (1935), the Court held that a probationer had the "privilege" of a hearing before his probation was revoked, but added that it did "not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute."

Summary of this case from Commonwealth v. Durling

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the United States Supreme Court flatly rejected the proposition that revocation of probation proceedings are subject to constitutional safeguards.

Summary of this case from Flint v. Howard

In Escoe v. Zerbst (1935), 295 U.S. 490, 55 Sup. Ct. 818, 79 L.Ed. 1566, the petitioner challenged the revocation of his probation without a hearing.

Summary of this case from State ex rel. Johnson v. Cady

hearing not a constitutional requirement

Summary of this case from State v. Oliver

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L. Ed. 1566, the supreme court addressing itself to the procedural problem of how to obtain appellate review of a revocation of probation said at 494, 55 S.Ct. at 820, 79 L.Ed. at 1569: "When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal.

Summary of this case from Walker v. Langlois

In Escoe v. Zerbst, 295 U.S. 490, 492-493, Mr. Justice Cardozo writing for the majority had denied the petitioner's contention that certain constitutional protections were applicable in probation revocation proceedings.

Summary of this case from Williams v. Commonwealth

In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), Justice Cardozo stated the aim of a revocation hearing under the federal act which required the probationer to "be taken before the court" for the district having jurisdiction over him. He wrote: "* * * there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper."

Summary of this case from Shum v. Fogliani

In Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L.Ed. 1566 (1935) the United States Supreme Court has held that one on parole has no constitutional right to a hearing prior to the revocation of parole, and that whatever right exists in a particular jurisdiction derives solely from the existence of statutory provisions requiring a hearing.

Summary of this case from Com. ex Rel. Thomas v. Myers

In Escoe v. Zerbst, 295 U.S. 490, 492, 493, 55 S.Ct. 818, 79 L.Ed. 1566, the court had suspended the execution of the sentence and placed Escoe on probation. An order, issued upon a report of a probation officer, revoking said probation was set aside, without prejudice, for failure to take the probationer "before the court" as required by Federal statute.

Summary of this case from State v. Brantley

In Escoe v. Zerbst, 295 U.S. 490, 79 L.Ed. 1566, the petitioner had been sentenced to prison, but on the same day the sentencing court suspended execution of the sentence and placed the petitioner on probation.

Summary of this case from Anderson v. Alexander

In Escoe v. Zerbst the applicable statute provided that a probationer arrested by a parole officer shall be taken before the court which may revoke the probation and impose any sentence that might originally have been imposed.

Summary of this case from Warren v. Parole Board

In Escoe, the Court construed the relevant federal probation statute and decided that a court's ex parte determination that a probationer had violated the conditions of his probation was in violation of that statute.

Summary of this case from Commonwealth v. Watson et al

In Escoe v. Zerbst, 295 U.S. 490 (1935) the United States Supreme Court held that a parolee has no constitutional right to a hearing prior to the revocation of his parole, and, further, that the only rights that do exist are those statutorily prescribed.

Summary of this case from Com. ex Rel. Rambeau v. Bd. of Pro. Parole
Case details for

Escoe v. Zerbst

Case Details

Full title:ESCOE v . ZERBST, WARDEN

Court:U.S.

Date published: May 20, 1935

Citations

295 U.S. 490 (1935)
55 S. Ct. 818
79 L. Ed. 1566

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