United States v. Behrens/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

375 U.S. 162

United States  v.  Behrens

 Argued: Oct. 17, 1963. --- Decided: Dec 9, 1963

Mr. Justice HARLAN, concurring in the result.

I agree with the result reached in this case, but not with all of the reasoning of my Brother BLACK'S opinion. More particularly, disagreeing as I do with the rationale of the Corey decision, post, p. 169, I draw no support from it for the conclusion here reached.

The language of § 4208(b) is not explici on the question whether a defendant must be allowed to be present when the District Court imposes final sentence. ^[1] It is, however, clear that the statute does not contemplate that the district judge will have deliberated and decided upon an appropriate sentence at the time of the original commitment. As the first words of § 4208(b) make plain, the procedures outlined therein are called into play 'if the court desires more detailed information as a basis for determining the sentence to be imposed * * *.' Although the statute refers later to 'the sentence of imprisonment originally imposed,' this is quite plainly intended merely to permit the district judge to impose as a final sentence the 'maximum sentence of imprisonment prescribed by law' under which the defendant is 'deemed to be' committed. The Corey case well illustrates the absurdity of any other conclusion; there the defendant was originally deemed to be committed for a term of 375 years on a conviction of making false claims against the Government. See 375 U.S., p. 171, 84 S.Ct., p. 300.

Once it is clear that a defendant is not actually sentenced until after the § 4208(b) inquiry during commitment is completed, the requirements of criminal justice, always subject to this Court's supervisory power over the federal courts, leave no doubt of his right to be present when a final determination of sentence is made. The elementary right of a defendant to be present at the imposition of sentence and to speak in his own behalf, which is embodied in Rule 32(a) of the Federal Rules of Criminal Procedure, is not satisfied by allowing him to be present and speak at a prior stage of the proceedings which results in the deferment of the actual sentence. Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant's words in his absence and give them due weight. Moreover, only at the final sentencing can the defendant respond to a definitive decision of the judge.

Whether or not the Constitution would permit any other procedure it is not now necessary to decide. Congress not having spoken clearly to the contrary, ^[2] I concur in the judgment of the Court.

Notes

1. Section 4208(b) provides:
2. A bill now pending in Congress provides that the defendant's presence is not required at final sentencing but the defendant may be present in the discretion of the court. S.1956, 88th Cong., 1st Sess.

Neither the legislative history set out in the opinion of the majority, ante, p. 166, note 4, nor the pending proposal seems to me sufficient indication of congressional intent to require disregard of the important right involved in this case, particularly in light of the possible constitutional issues which would be raised.