Fredericks v. Gladden , 211 Or. 312 ( 1957 )

BRAND, J.

The first opinion of this court was handed down on March 13,1957, 209 Or 683, 308 P2d 613. That opinion held that the plaintiff, George Fredericks, was prematurely released from the penitentiary by reason of an incorrect computation of the amount of “Good Time” to which he was entitled. ORS 421.120(1) (b). We agree. The court then considered whether or not the plaintiff received his discharge from imprisonment by the exercise of the constitutional power of the governor to grant pardons and commutations or whether the discharge was solely pursuant to the provisions of ORS 421.120 not involving the pardon power of the governor. The court arrived at the conclusion that the result of the statute was “to vest in the governor a dual authority to release prisoners, one, by virtue of the constitution, and the other, by virtue of the above statute.” The opinion held that the plaintiff was not released as a result of any act performed by the governor pursuant to his constitutional authority. Again, we agree. In substance, the court held that the defendant was unlawfully released but that the warden had no authority to arrest the plaintiff and return him to the penitentiary to complete the service of his sentence. With this portion of the decision we disagree, as will later appear. From this decision a petition for rehearing was granted. The case was again argued and is now before us for further consideration. It has been suggested that we erred in failing to hold that the plaintiff was released by act of the governor in the exercise of his constitutional power to grant pardons. It is argued that the governor was vested with the complete constitutional power to commute sentences and that ORS 421.120 neither enlarged that power nor vested in the governor any additional overlapping or duplicate power. It is further argued that the plaintiff was finally and unconditionally released by the exercise of the governor’s pardoning power which includes the power of commutation. The consequence of this theory, if adopted, would be to reject our earlier conclusion which was to the effect that the error in the premature release of the prisoner could be rectified by action of the governor or through invoking the power of the courts. If the governor in the exercise of his pardoning power, released the plaintiff, that would of course end the matter.

It has been thought necessary to consider the validity of good conduct statutes. All are agreed that such statutes are valid when they are not retrospective in effect and are of general application. It is said that good conduct statutes have been held invalid in some cases when they were challenged on the ground that they were being applied retroactively. But that question is not before us in this case. The 1937 law, Chapter 268 (now ORS 421.120(1) (b)) for the first time provided a true “G-ood Time” statute, one which provided that, on the maldng of the required certificate and recommendation by the warden, the prisoner shall he entitled to a deduction from the term of his sentence, as follows: “(b) Upon a sentence of more than one year, 10 days for each month of actual service of such sentence in the penitentiary,”. That precise provision was in effect when the defendant was sentenced on 27 November 1945 and when the warden made his certificate and recommendation to the governor wherein he stated that “In compliance with the Provisions of Chapter 505 Oregon Laws 1955 (ORS 421.120 Revised), I hereby certify that the inmates listed below are entitled to “Good Time” credits as scheduled' * * *.” Then follows the name of George Fredericks, “Sentence 15 years”, Statutory Good Time 4 yrs. 11 mos. 29 days.” The section of statute to which the warden referred was a reenactment of the earlier provisions of Chapter 268, Laws of 1937. The application of that act to the case of the plaintiff could not be retroactive because it was enacted in 1937 and the defendant was not sentenced until 27 November 1945. It is true that statutes were enacted in 1953 and in 1955 which provided other and additional good time allowances, and if the warden had based his recommendation upon those provisions the question of retroactivity would have been involved. But the certificate signed by the warden and addressed to Governor Patterson shows that he was awarded “statutory” good time of 4 years, 11 months and 29 days. Following the columns headed “Statutory Good Time” are columns entitled “Industrial Good time”, “Annex Good Time”, “Forest Camp Good Time”, and “Parole Good Time Restored”. Under each of these columns and opposite the name of the plaintiff there is a blank, indicating clearly that no credit for good time was allowed him except credit for “Statutory Good Time”. As stated in the first opinion of this court “plaintiff was not given good time credits in any of those columns”. It will be recalled that defendant received a 15-year sentence which he began serving on 29 November 1945 and that he was released on 29 November 1955. This demonstrates that the credit he received was exactly one-third of the full time of his sentence, which was in accordance with the erroneous interpretation which had prevailed as to the proper effect of Chapter 268, Laws of 1937 (now ORS 421.120(1) (b)). It cannot be argued that he received credit for good time on any other basis and, as the court said in its first opinion, the plaintiff was released 15 months too early under the 1937 statute properly construed. The conclusion which must be drawn is that plaintiff was released under an erroneous construction of the provisions of the 1937 act which operated on his case prospectively. The 1953 and 1955 provisions for additional good time credits were not involved in any way and no question of retroactivity is in this case.

We will now consider the analogy of statutes providing for parole of prisoners. Such statutes do not involve any exercise of the pardon power of the governor even when the power of parole is vested in that official. In Anderson v. Alexander (191 Or 409, 229 P2d 633, 230 P2d 770, 29 ALR2d 1051) we upheld and enforced the provisions of our parole law which vests in the parole board the power to parole prisoners without any participation by the governor. To hold that such a parole is an exercise of the pardon power and therefore unconstitutional would be unthinkable and contrary to a multitude of decisions including the Anderson case. A hasty examination of the statutes of various states shows that the power of parole has been vested in parole boards without any participation by the executive in the federal system, 18 USCA 4201-4207, and by statute in many states, including California (Cal Pen Code, §§3000-3200); Illinois (Smith Hurd Ill Stat Ch 127, § 55b); Michigan (Mich Stat Ann 28.2301-28.2315); New Jersey (NJ Stat Ann 30.4, 123.1-123.44); New York (NY Correc Law 210); Pennsylvania (61 Purdon’s Penn Code 331.1); Washington (Bev Code of Wash 9.95).

Turning to the much discussed case of Fehl v. Martin, 155 Or 455, 64 P2d 631, we find that the case arose under Oregon Code 13-1906 (1930). That statute as construed gave the governor power to parole prisoners but only under conditions specified in the act. It was held that the act was not a “good time” act authorizing the termination of imprisonment as in the case of a pardon but only purported to control the exercise of the power of the governor to parole. The distinction between the two types of statute is clear. In Anderson v. Alexander, supra, we pointed out that a parole does not obliterate the crime or forgive the offender. It is not an act of clemency. Parolees remain in constructive custody and under guidance. A pardon, on the contrary, is the exercise of the sovereign prerogative of mercy. It completely frees the offender from the control of the state. It was assumed in the first opinion in Fehl v. Martin that a parole was a conditional pardon. If that assumption was correct, then the conditions imposed by OC 13-1906 (1930) would have been unconstitutional. What the court said was merely that “no act of the legislature could take away from the governor the power to grant an absolute or a conditional pardon”, which of course is true, but the court did not directly hold OC 13-1906 (1930) unconstitutional and the opinion of Justice Bailey clearly points out that the question as to whether the parole statute was in contravention of Article V of the Oregon Constitution which confers upon the governor exclusive authority to grant reprieves, commutations and pardons was “not involved in this appeal.”

In the light of the rulings in Anderson v. Alexander it is clear that a parole statute cannot be an exercise of the pardon power. Under OC 13-1906 (1930) it was an additional authority vested in the governor which enlarged the prison confines but did .not end the imprisonment or the sentence or shorten the term thereof. Through a long series of acts the power of the governor to parole prisoners was granted and restricted with no thought of limiting or affecting his constitutional powers of pardon. See Laws, 1905, Ch 187; Laws, 1911, Ch 127; Laws, 1917, Ch 302; Laws, 1919, Ch 150; Laws, 1920, Special Session, Ch 8; Laws, 1921, Ch 110. The foregoing statutes all referred to a time when the power of parole was by statute vested in the governor, and during all this time we find no decision of this court questioning the validity of the parole statute or of the numberless paroles granted thereunder except as above stated. Thus the power to parole vested in the governor found its origin in statute, not in constitution. The question suggests itself, why then cannot the legislature also vest in the governor the duty and authority to approve a recommendation of the warden for a good time allowance without any way infringing on his constitutional power of pardon? The pardon power is the power to release a prisoner and to completely free a prisoner from the power of the state. Anderson v. Alexander, supra. A commutation, a form of pardon unless expressly made conditional, also completely frees the prisoner from the power of the state after the effective date of the commutation.

We agree that the governor is vested with the complete power to pardon or commute any sentence from the day on which the defendant is imprisoned and at any time thereafter during imprisonment. But the governor’s constitutional power is the exercise of the sovereign prerogative of mercy. It is not a power to keep a person in prison. It is a power to free him. We see no limitation of the pardon power in a statute which, if not retroactive, validly shortens a sentence by the allowance of good time. (Whether a retroactive good time statute is unconstitutional is a matter on which we now express no opinion.) If the governor so desired he could pardon or commute any sentence before the time for the prisoner’s release. How then is his constitutional power restricted by the good time statute?

Our attention has been directed to In re Conditional Discharge of Convicts, 73 Vt 414, 51 A 10 (1901). The statement made by that court must be placed in its proper context. The court was discussing the unrestricted power of the governor to grant pardons which was said to include the authority to grant all lands of pardon known to the common law, including full, partial, absolute or conditional pardons. Of such pardon power the court said: “This power can neither be restricted nor taken away by legislative action. Nor can a like power be given by the legislature to any other officer or authority.” 73 Vt 414, 420. We agree with this pronouncement when it is properly understood. The pardon power cannot be restricted and no like power can be given to others. But we beg the question if we say that a good time statute is a like power. The Vermont court was discussing a statute empowering the governor to “discharge” a convict and it said a “discharge” is a conditional pardon. The name was “of but little consequence.” Concerning Act No. 126 of Laws, 1898, the Vermont court said:

“* * * The effect of this act would be to transfer the power of conditional pardon from the governor to the board of prison commissioners, which, as before seen, cannot be done by legislative action; and section 8 of No. 126 is unconstitutional and void.” In re Conditional Discharge of Convicts, 73 Vt 414, 421.

Surely there is a self-evident distinction between a statute transferring the governor’s power of conditional pardon and a good time statute prospectively shortening the term of imprisonment subject to the power of the governor to exercise the pardon power at a time earlier than provided in the good time statute. Finally, the Vermont court held that a parole is a conditional pardon and the statute authorizing paroles by prison authorities is unconstitutional and void. We may safely assume no one will subscribe to the proposition that our law which vests in the parole board the power to grant paroles is unconstitutional. To hold that would be to turn the clock back 50 years and destroy the greatest system known for the control and rehabilitation of convicts.

We have been referred to Ex parte Costello, 22 Wash2d 697, 157 P2d 713, and it is argued that “If the legislature can not give a little power to any other officer, how can it give a little power to the same officer who already has the complete power?” True, the legislature cannot give a little of the governor’s pardon power to any other officer. It is also true that a legislature cannot enlarge a power already full and complete, but here again there appears the danger of begging the question. If a good time statute does not trespass upon the pardon power it may be valid, and if the duty imposed upon the governor by the good time statute does not affect this pardon power but relates to a different matter, then such a statute is not an attempt to enlarge a power which is great beyond enlargement. It merely gives him a collateral duty outside of the purview of his pardon power. Ex parte Costello is not in point on the issue presently before this court. In that case the governor issued a conditional pardon which was expressly made revocable at any time. The petitioner Costello was released under the conditional pardon. He violated the conditions thereof and the governor revoked the pardon. Petitioner in habeas corpus then claimed that an order made by the parole board amounted to a final discharge. The Washington Supreme Court held in substance that the parole board had no authority to grant “a final discharge” which would release petitioner from the conditions imposed by the governor’s conditional pardon.

Based upon the cases which we have considered supra, it has been argued that “in releasing plaintiff the governor acted pursuant to his constitutional authority to grant commutations and thus terminated plaintiff’s sentence on November 29, 1955.” We hold that the good time statute was not, as to the plaintiff, retroactive and did not invade the governor’s pardoning power (Fite v. State, 114 Tenn 646, 88 SW 941 (1905)) and that the act of the governor in approving the warden’s certificate in no way involved or limited his pardoning power. Here a statute which was passed in 1937 provides that each prisoner “hereafter confined * * # whose record of conduct shows that he faithfully has observed the rules of the institution, and where industry and general reformation are certified to the G-overnor by the warden # * * shall be entitled upon order of the G-overnor, to a deduction * * OES 421.120. (Emphasis ours.) “Entitled” is defined as follows: “To give a right or legal title to”. Webster’s International Dictionary, 2d ed. Plaintiff was thereafter imprisoned, and at a later time the warden made the required certificate. That certificate was made in compliance with the provisions of Chapter 505, Laws of 1955 (ORS 421.120) which was also Chapter 268, Laws of 1937. It certified to the good time credits of 32 convicts, including the plaintiff. The certificate is in the form of a letter addressed to the governor, and at the lower left-hand corner appear the words “APPROVED s/ Paul Patterson, Governor”. This is not the procedure followed or prescribed for the exercise of the pardon power. We should not assume that the governor intended a mass pardon of 32 prisoners by his mere endorsement of the certificate.

In Carpenter v. Lord, 88 Or 128, 171 P 577, this court said:

“# * * true that the Governor may pardon an offender by virtue of his constitutional power in that behalf, but even that is not effective unless it is accepted by the prisoner to whom the pardon is offered. As said by Mr. Chief Justice Marshall in United States v. Wilson, 7 Pet. (U.S.) 150 (8 L. Ed. 640):

“ ‘A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.’ ” And see, 67 CJS 574, Pardons, § 10b; and 39 Am Jur 546, Pardon, Reprieve and Amnesty, §§ 45, 46,47.

The early case of Ex parte Ridley, 3 OHa Cr 350, 106 P 548, is not in harmony with the rule in Oregon and many other states concerning the power of the legislature to provide for a system of parole by bodies other than the governor, but that opinion is directly in point on the issue before this court. We quote:

“* * # We are of opinion, upon an examination of the authorities and upon principle, that an act of the Legislature specifically defining credits for good behavior, in existence at the date of the judgment against the prisoner, becomes a part of the sentence and inheres into the punishment assessed, and is not an invasion of the constitutional prerogative of the Governor.”

We hold that the statute gave the prisoner a right to have his sentence shortened for good behavior under the conditions specified and that the terms of the Oregon good behavior statute were written by implication into the sentence imposed upon the prisoner by the court.

No doubt the governor had a right and perhaps a duty to satisfy himself that the facts stated in the certificate were such as to entitle the prisoner to discharge under the provisions of the statute. In this case the governor relied upon the certificate and signed it, acting perhaps under the same misapprehension as to the meaning of the statute which had for some time prevailed by former wardens. The fact remains that the statute did not entitle the plaintiff to a discharge “in compliance” with the provisions of the statute cited in the certificate. The warden’s certificate did not disclose to the governor the dates of the sentence or of the confinement and the governor could not tell therefrom whether or not plaintiff was “entitled” to the reduction as set forth in the certificate. It is conceded that the plaintiff was not so entitled and that the making of the certificate, so far as plaintiff is concerned, was an excusable error on the part of the highly competent warden who followed the earlier incorrect construction of the law until he was informed of the true meaning thereof. Concededly, the warden had no authority to certify that plaintiff was entitled to be released in November 1955. The certificate was illegal and void. 67 CJS 366, Officers, § 102. We hold that premature release of the prisoner was illegal. The governor could then or at any time thereafter have freed the plaintiff by the exercise of his unquestioned power of pardon, but the record shows that he did not exercise that power. The approval by the governor of a void certificate of the warden could not be considered to be a valid release under the statute, and obviously such a certificate did not follow the procedure recognized as requisite to constitute a pardon.

Article V, § 14, of the Constitution of Oregon vests in the governor the full pardon power “subject to such regulations as may be provided by law.” There do not appear to be any legislative regulations attempting to limit the substantive power. But statutes have been passed pursuant to the constitution regulating procedure. See Ex Parte Bustillos, 26 NM 449, 194 P 886. Under OBS 143.050 and 143.060 the governor is required to communicate to the legislature at its next meeting each case of the exercise of the pardon power “with the reason for granting the same, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.” He must “file all the papers presented to him in relation thereof in the office of the Secretary of State, * * There is no evidence that any papers were filed pursuant to this statute or that any pardon of the plaintiff or any of the 32 prisoners was reported to the legislature. We are not suggesting that the governor violated his duty. On the contrary, it is apparent that he did not exercise or intend to exercise the pardon power and therefore was not required to and did not comply with the statutory provisions concerning pardons. Our conclusion is that the governor approved the release under a mistake of fact in the attempted performance of a duty imposed upon him by the statute, and that the plaintiff was thereafter illegally at large. The trial court held that on such a release plaintiff was a constructive escapee. We think the trial court was right and that the habeas corpus proceedings were properly dismissed. If at a time when the defendant was illegally at large he was apprehended and returned to the penitentiary, his term not having then expired, we need not inquire how he got there. Hopkins v. North, 151 Md 553, 135 A 367, 49 ALR 1303; State v. Endsley, 122 Tenn 647, 126 SW 103, 104 (1910); Simpson v. State, 56 Ark 8,19 SW 99,101; Anderson ex rel Poe v. Gladden, 205 Or 538, 288 P2d 823; 15 Am Jur 160, Criminal Law, § 512.

We detected in the final brief of the Attorney General some apprehension as to results which might follow if it should be held that a good time statute could not constitutionally be given retroactive effect. If such a holding should in the future be made and if undue hardship or injustice should result from action taken by officials on the assumption that such good time statutes could be given retroactive effect, an adequate and prompt remedy could be found in the pardon or commutation power of the governor by the exercise of which the legislative intent could be lawfully effectuated.

In so far as the original opinion of this court is inconsistent with what we have said here, it is withdrawn. The judgment of the circuit court dismissing the habeas corpus proceedings is affirmed.