Section 2104. pact of short-term confinement in a penal facility in cases where it is thought to be a valuable supplement-or a necessary requisite—to a disposition focusing mainly on a correctional goal. Flexibility is provided by permitting confinement in split intervals, thus authorizing, for example, week-end imprisonment with release on probation during the week for educational or employment purposes, or nighttime imprisonment with release for such purposes during working hours. Paragraph (13) notes that the probationer may be required to reside in a certain place, thus permitting the court to remove the defendant from a detrimental environment which apparently contributed to his prior anti-social behavior (e.g., a criminogenic environment) and to reside during the term of probation in an area-perhaps in a distant district "-more conducive to rehabilitation. 18 The requirement in section 2103 (d) that the court present a written statement of the conditions to the offender is contrary to the requirements of current law. The Committee believes, however, that it should be required both as a matter of fairness and as a matter of efficient program administration." SECTION 2104. RUNNING OF TERM OF PROBATION 1. In General This section governs the commencement of a term of probation; the effect of other sentences upon the running of the term; and the court's power to terminate, modify, or extend a term of probation. 2. Present Federal Law While the probation provisions of the current title 18 are silent as to when a term of probation commences, the courts have held that, unless another time is specified in the order, it begins when the judge imposes sentence.20 Rule 38 (a) (4) of the Federal Rules of Criminal Procedure provides that if the order placing the defendant on probation is not stayed, the court shall specify when the term of probation shall commence. The provisions of the current statutes are also silent with regard to the running of multiple terms of probation. Where the question has arisen, the courts have held that such terms may be consecutive but may not exceed the maximum term of five years provided by 18 U.S.C. 3651.21 The current statutes do not specify whether a term of probation can run concurrently with a sentence of imprisonment. While most courts have held that probation is tolled by a sentence of imprisonment,2 ,22 at least one court has held that incarceration for an offense committed prior to the imposition of probation does not toll the term of probation. 23 17 See section 3806. 18 See Zaroogian v. United States, 367 F.2d 959 (1st Cir. 1966); McHugh v. United States, 230 F.2d 262 (1st Cir.), cert. denied, 351 U.S. 966 (1956). 19 An error in the recitation of conditions in the statement, or even an accidental failure to supply such a statement, should not necessarily be construed as a reason to impugn the propriety or validity of a decision to revoke or modify the probation because of a breach of a condition actually imposed. 20 Gaddis v. United States, 280 F.2d 334 (6th Cir. 1960); Davis v. Parker, 293 F. Supp. 1388 (D.C. Del. 1968). 21 United States v. Pisano, 266 F. Supp. 913 (E.D. Pa., 1967). 22 U.S. ex. rel. Demarois v. Farrell, 87 F.2d 957 (10th Cir.), cert. denied, 302 U.S. 683, rehearing denied, 302 U.S. 775 (1937); Ashworth v. United States, 392 F.2d 245 (6th Cir. 1968). 23 United States v. Pisano, supra note 21. Section 2105. 18 U.S.C. 3653 grants a discretion to a court, upon review of a probationer's conduct, to discharge the probationer from supervision and terminate the proceedings against him, or to extend the term of probation. However, the authority to extend the term of probation is subject to the five year limitation contained in 18 U.S.C. 3651.24 3. Provisions of S. 1, as Reported Subsection (a) of section 2104 provides that the term of probation commences on the day it is imposed, unless otherwise ordered. Subsection (b) provides that multiple terms of probation are to run concurrently, regardless of when or for what offenses they are imposed; consequently, unlike the situation under current law, consecutive terms of probation may not be imposed. This subsection also makes it clear that probation does not run during any period during which the defendant is imprisoned for any other Federal or State offense.25 This provision reflects the fact that the purpose of probation is to afford an opportunity to evaluate by an on-the-street test whether the probationer possesses the ability and inclination to live freely in our society without reverting to criminal activity, and that this evaluaton cannot be made while the defendant is serving a term of imprisonment. Subsection (c) authorizes the court to terminate a term of probation and to discharge the defendant prior to its expiration at any time in the case of misdemeanor or infraction or after one year in the case of a felony, if the circumstances and the interest of justice warrant such action. While 18 U.S.C. 3653 permits such early termination at any time without regard to the degree of the offense, it appears appropriate to retain the court's jurisdiction over an offender convicted of a felony for at least a one year period. If the court determines that an offender need not be actively supervised during such a period, it may, of course, impose only the least onerous discretionary conditions of probation that it decides to be advisable, or may permit the probationer to remain at liberty subject only to the single condition that he not commit another offense, 26 Section 2104 (d) authorizes the court to extend a term of probation, unless the maximum term was previously imposed, at any time prior to its expiration or termination. Section 2104 (e) provides that a term of probation remains subject to revocation during its continuance. 1. In General SECTION 2105. REVOCATION OF PROBATION This section provides that probation may be revoked in consequence of a violation of a condition of probation, and specifies the period during which such revocation may take place. 2. Present Federal Law 18 U.S.C. 3653 provides that during the term of probation a probationer may be arrested by his probation officer without a warrant for violation of a condition of the probation. It further provides that 24 United States v. Edminston, 69 F. Supp. 382 (W.D. La., 1947), United States v. Buchanan, 340 F. Supp. 1285 (E.D. N.C. 1972). The Committee of course does not intend the tolling provision to apply to a split sentence under 2103(b) (11). 26 See section 2103(a). Section 2106. within the maximum term permitted by section 3651 (five years) the court may issue a warrant for the arrest of the probationer for a violation of a condition occurring prior to expiration of the term imposed. After arrest, the probationer must be taken as speedily as possible before the court having jurisdiction over him, whereupon the court may revoke probation and reinstate the sentence originally imposed, impose a lesser sentence, or, if imposition of the sentence was suspended, impose any sentence which could have been imposed at the time of the judgment of conviction. The courts have held that after revocation, no further probation may be ordered." 3. Provisions of S. 1, as Reported Section 2105 (a) provides that if a defendant violates a condition of probation the court either may continue the defendant on the sentence of probation, subject to such modifications, if any, as it deems appropriate, or may revoke probation and impose any other sentence which could have been imposed at the time of the initial sentence. Provisions governing the arrest of a probationer are contained in sections 3016 and 3807 of the Code and in Rule 32 (e) (1) of the Federal Rules of Criminal Procedure; provisions governing the hearing to be accorded the probationer are contained in Rule 32(e) (2). Section 2105 (b) provides that revocation of probation may occur after the term of probation has expired if a violation of a condition occurred prior to the expiration and if the intent to conduct a revocation hearing was affirmatively manifested prior to the expiration of the term of probation.28 Thus, the section more narrowly restricts the time within which to revoke probation than does 18 U.S.C. 3653. which permits revocation at any time within the maximum period of five years regardless of the term initially imposed. In other respects this section of the new Code does not reflect any change in the existing law. SECTION 2106. IMPLEMENTATION OF A SENTENCE OF PROBATION This section, which has no counterpart in current law, merely directs attention to the fact that provisions governing the implementation of probation are contained in subchapter A of chapter 38. 27 Fox v. United States, 354 F. 2d 752 (10th Cir. 1965). 28 While the Code spells out in some detail the revocation procedures to be followed in the event of a violation of a condition of parole (see section 3835), the Committee felt it appropriate to retain the procedural provisions concerning revocation of probation in the Federal Rules of Criminal Procedure where they now appear and where they will remain subject to revision by the Judicial Conference of the United States. CHAPTER 22-FINES (Sections 2201-2204) This chapter sets the maximum monetary fines that may be imposed for the various levels of criminal offenses, specifies the criteria governing imposition of fines, and provides for the subsequent modification or remission of fines previously imposed. The Committee is of the view that fines generally have been an inappropriately under-used penalty in American criminal law, even though there are many instances in which a fine in a measured amount can constitute a highly effective means of achieving one or more of the goals of the criminal justice system. Part of the reason for the under-utilization of fines as a criminal sanction is the fact that the levels of fines under current law, with rare exceptions, are pegged so low that they present the courts with a severely limited option. These statutory limits are largely the products of an earlier era when the average wage earner achieved a yearly income considerably lower than that common today, and when inflation had not yet reduced the value of currency to its present level. There exists today the anomalous situation wherein an average felony may entail on the one hand a maximum of five years imprisonment, and on the other hand a fine of only $5,000 or $10,000. Before the two facets of the stated penalty may seriously be considered as alternatives to one another, they must be of roughly equivalent severity. Yet today, five years of a man's freedom, even when measured by an average man's earning power alone, carries a value in excess of $50,000. In a case in which a serious violation has occurred, but in which the court has found reason to explore alternatives to incarceration, the current state of the law needlessly hampers the court in its fashioning of an appropriate sentence. It is with the intent of enhancing the ability of the courts to fashion remedies appropriate to offenses by providing maximum fines at levels that are suitable to our times and at levels that will help to eliminate the popular view that certain offenses will lead only to a nominal fine equatable to a minor cost of doing business-that the Committee has drafted the provisions of this chapter. 1. In General SECTION 2201. SENTENCE OF FINE Section 2201 establishes the general statutory authority for the imposition of a fine as a penal sanction. The maximum amount of the 1 A dramatic exception is the provision of 21 U.S.C. 848 which permits a fine of $100,000 ($200,000 if the defendant is a recidivist) for the offense of operating a continuing drugtrafficking enterprise. Under this section, fines of up to $300.000 have been imposed on individuals under multiple-count indictments. See United States v. Sperling, F. 2d (2nd Cir. 1974). 2 Under most current law provisions, of course, such a statement of a penalty is not a recitation of two mutually exclusive alternatives; both the five-year and the $5.000 maximum may be imposed. fine that may be imposed in a particular case depends on whether the offense is classified as a felony, misdemeanor, or infraction; whether the offender is an individual or an organization; and whether the defendant derived pecuniary gain or caused pecuniary loss as a result of the offense. 2. Present Federal Law Under the present Federal law, fines are specified as an authorized form of sentence for virtually all offenses. It is recognized that fines often represent the only useful sanction against corporations and other organizations, as well as being, in the view of many judges, the major acceptable penalty against significant numbers of individual Federal offenders. The authorized maximum limits, however, as just noted, are generally very low. Complaints that current fine levels are insufficient to accomplish the purposes of sentencing are being voiced by Federal judges with increasing regularity. Present Federal law also includes large and logically inexplicable disparities in the levels of fines permitted as criminal sanctions for offenses of essentially similar natures. The following are examples. A. Conspiracy to defraud the United States or to commit any offense against the United States is punishable by a maximum prison term of five years and by a fine of up to $10,000. On the other hand, a conspiracy to prevent a person from accepting Federal office or to prevent a Federal official from discharging his duties, while graded more seriously in terms of the authorized prison term, which is six years, carries a lesser maximum fine-$5.000.5 6 B. Forgery of naturalization or citizenship papers carriers the same maximum five-year prison term as does forgery of an entry visa, yet the former offense carries a maximum fine of $5,000 and the latter a maximum fine of only $2,000. Moreover, another offense of this kind, falsification of an invoice by a consular official, carries a maximum prison term of three years and thus, presumably, is conceived to be a less serious offense than the two cited forgery offenses. Yet, it provides for a $10,000 fine." 8 C. Robbery of a Federally insured bank can be punished by a fine of up to $5,000, as well as by a sentence to imprisonment. Robbery of a post office cannot result in a fine.9 D. A postmaster who demands more than the authorized postage for mail matter and a vessel inspector who collects more than the authorized fee both are subject to a maximum prison term of six months. The vessel inspector can be fined up to $500, however, while the postmaster is subject to a fine of only $100.10 See the statement of Judge Renfrew of the Northern District of California in which he complains that the $50,000 maximum that he imposed in a recent price-fixing case was not sufficient under the circumstances and that "had the maximum been more than $50,000, the amount of the fines would have been substantially more as to all of the defendants. [H]ere. it seems to me, is a situation where clearly there's a need for increasing the amount of the fine." 16 Cr. L. 2178, 2181 (Nov. 1974). See also the statement of Judge MacMahon of the Southern District of New York in which, upon imposing the maximum available fines of $75,000 on each of two millionaire defendants found guilty of evading $761.000 in taxes, he said that he regretted that the tax laws did not permit him to impose a higher fine on each defendant. New York Times, March 20, 1973, p. 26, col. 1. (Note too, that in each of these cases the fines available were substantially higher than those generally available in Federal criminal cases.) 4 18 U.S.C. 371. 518 U.S.C. 372. 18 U.S.C. 1726; 18 U.S.C. 1546. 718 U.S.C. 1019. 8 18 U.S.C. 2113(a). 918 U.S.C. 2114. 10 18 U.S.C. 1726; 18 U.S.C. 1912. |