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 These provisions were repealed by §§ 1101 (b) (3) (A) and (b) (4) (A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292.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.
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).
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
Section 1103 (a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:
Petitioners contend that the word "prosecutions" in § 1103 (a) must be given its everyday meaning. When people speak of prosecutions, they usually mean a proceeding that is under way in which guilt is to be determined. In ordinary usage, sentencing is not part of the prosecution, but occurs after the prosecution has concluded. In providing that "[p]rosecutions . . . shall not be affected," § 1103 (a) means only that a defendant may be found guilty of an offense which occurred before May 1, 1971. The repeal of the statute creating the offense does not, on this narrow interpretation of § 1103 (a), prevent a finding of guilt. But § 1103 (a) does nothing more, according to petitioners.
Although petitioners' argument has some force, we believe that their position is not consistent with Congress'
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).
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,
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.
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).
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,
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
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:
The problem of ambiguities in statutory language is not peculiar to legislation dealing with criminal matters. And the question as to how those ambiguities should be resolved is not often rationalized. The most dramatic illustration, at least in modern times, is illustrated by Rosenberg v. United States, 346 U.S. 273, where a divided Court resolved an ambiguity in a statutory scheme against life, not in its favor. The instant case is not of that proportion, but it does entail the resolution of unspoken assumptions—those favoring the status quo of prison systems as opposed to those who see real rehabilitation as the only cure of the present prison crises. As Mr. Justice Holmes said, "judges do and must legislate, but they can do so only interstitially; they are confined from
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.
"[I]n substance the growth of the law is legislative. And this in a deeper sense than that which the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which the courts most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. We mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in this way, new reasons more fitted to the time have been found for them, and that they gradually receive a new content and at last a new form from the grounds to which they have been transplanted. The importance of tracing the process lies in the fact that it is unconscious, and involves the attempt to follow precedents, as well as to give a good reason for them, and that hence, if it can be shown that one half of the effort has failed, we are at liberty to consider the question of policy with a freedom that was not possible before." Common Carriers and the Common Law, 13 Am. L. Rev. 609, 630-631 (1879).