I. IMPRISONMENT OR CONFINEMENT. 1458. A sentence, which, in imposing confinement (or imprison ment-the two terms being practically synonymous in sentences of courts martial), fails clearly to indicate how long the same is to continue, is irregular and inoperative. Such a sentence should be disapproved by the reviewing authority unless it can be procured to be corrected by a reassembling of the court for the purpose. XVI, 283, June, 1865. 1459. In imposing a sentence of confinement at a military prison, the court should properly add "at such place as the proper authority may designate," or words to that effect. To direct that the place of confinement be designated by an officer inferior to the convening authority is irregular and improper. IV, 356, and V, 309, November, 1863; IX, 600, September, 1864. 1460. It is now established by a long series of precedents that a general court martial is authorized to adjudge, by sentence, a term of imprisonment to extend beyond the end of the pending term of enlistment of the soldier, or beyond his legal period of service. Thus, for example, where the term of the enlistment of the accused has still a year to run, the court the gravity of the offence justifying it-may sentence him to an imprisonment for two years or longer: so, it may sentence him to be dishonorably discharged (thus itself discontinuing his period of service), and then confined for a designated term. And such sentences may be executed with the same legality as any other sentence of imprisonment. In the former case the soldier will not be entitled to be released from the confinement at the end of his enlistment, nor, in the latter, will he, upon the execution of the discharge, become so entitled. In each case, upon the determination of the enlistment or service, the party continues to be held under his sentence not as a soldier but as a civilian U. S. convict. XXXI, 89, December, 1870; 353, May, 1871; XXXVIII, 513, March, 1877; XXXIX, 509, April, 1878. 1A sentence of confinement is executed by sending the party under a proper guard to the place of confinement duly designated, and at the same time transmitting to the officer there in command a copy of the order approving the sentence and ordering the execution, together with other proper papers required to exhibit the status of the soldier. See paragraph 911, Army Regulations (1895), as amended by G. O. 112, A. G. O., 1899 (1012 of 1901). 2 As to the order of the execution of the punishments, when dishonorable discharge and a term of imprisonment are imposed by the same sentence,—see § 1146, ante. See par. 152a, A. R. (169 of 1901). Where the approval of a sentence of confinement in a case of a soldier, in which proceedings had been duly commenced pending his term of enlistment, was not promulgated till after such term had actually expired, but no discharge had been given to the soldier before promulgation, held that it would be legal to subject him to the confinement adjudged by the sentence. XIX, 600, April, 1866. 1461. Sentences of imprisonment till a fine, also imposed by the sentence, is paid, are sanctioned by the usage of the service. It is proper, however, in such sentences to affix a limit beyond which the punishment shall not be continued in any event. XIII, 472, March, 1865; XX, 16, October, 1865; XXXII, 47, October, 1871. Where a sentence adjudges a fine without also adding (with a view to enforcing its payment) a term of confinement,-such a confinement cannot of course legally be imposed by the military commander. XIII, 472, supra. So, held that par. II of G. O. 61, War Department, 1865, to the effect that, where a court martial, in imposing a fine, has failed to require that the prisoner shall be confined till the fine is paid, "he will not be released without orders from the War Department, except on payment of the fine," transcended the authority of an executive order; such a requirement being a punishment, which can be prescribed only by sentence of court-martial. XXXIII, 309, August, 1872. 1462. The old rule, that the term of a confinement (of so many months, years, &c.), imposed by sentence of court martial, commenced on the day on which the prisoner was delivered to the proper officeras the officer in charge of the prison or commanding the post-to be confined according to the sentence (XI, 380, January, 1865), having been found inconvenient in practice, there was substituted for it by G. O. 21, Hdqrs. of the Army, of 1870, the rule that the confinement shall be considered as commencing at the date of the promulgation of the sentence in orders." To hold that under this order the commencement of the confinement must be delayed until notice of it has reached the prisoner might lead to the same abuse which the order was intended to correct.' XXX, 150, March, 1870. 1463. While the fact that the accused has been confined for an unreasonable period awaiting trial may properly be taken into consideration by the court in estimating the period of confinement proper to be imposed upon his conviction (XXVIII, 104, August, 1868), neither the time during which the accused may have been held in arrest and confinement prior to trial, nor that during which he may have been so held after trial and before the promulgation of his sentence, can be credited See paragraphs 945 and 947, Army Regulations of 1895 (1046 and 1048 of 1901), also, paragraphs 13 and 15, p. 64, Court-Martial Manual (1901). on a term of imprisonment adjudged thereby in executing the same. If the party has been detained for an unreasonably long period at either of these stages of the proceedings, he can be indemnified therefor only by a proportionate mitigation or remission of his punishment. XI. 380, January, 1865; XXVIII, 340, 482, January and April, 1869. 1464. Where an officer or soldier is sentenced merely to a term of confinement without the addition of "hard labor," other than in a penitentiary or the Leavenworth military prison, while he may properly be required to perform the ordinary domestic or police work directed by the sanitary regulations of the prison, he cannot properly be put to unusual labor of a severe and continuous character. Thus held that to require a soldier sentenced simply to be confined, and confined accordingly at Alcatraz Prison, to work daily at blasting and quarrying rock, was adding to the punishment (see SENTENCE AND PUNISHMENT), and therefore unauthorized. XXXVII, 640, June, 1876; XXXIX, 500, March, 1878; XLI, 123, February, 1878. 1465. To a proper execution of a sentence of confinement, a secure keeping of the person is of course essential. Where, therefore, it is not possible otherwise to prevent a prisoner's escape or to prevent violence on his part, he may be put in irons without adding to the punishment. But such exceptional restraint cannot legally be imposed except where thus necessary. XXXIV, 375, July, 1873. 1466. A prisoner not expressly required by his sentence to be confined in irons cannot legally be subjected to such form of confinement except where there is sufficient ground to apprehend serious violence on his part or an attempt to escape. A mere threat of violence would not ordinarily justify the use of shackles or fetters. 32, 35, April, 1889. 1467. It is not adding to the punishment in executing a sentence of confinement to require the prisoner to perform work prescribed for prisoners of his class by the statute law. Thus persons sentenced to imprisonment at the Military Prison at Leavenworth, though "hard labor" be not in terms added to the sentence, may legally be employed in the labor or at the trades indicated by Sec. 1351, Rev. Sts. XXXVII, 640, June, 1876; LI, 601, March, 1877; 42, 101, July, 1890. 1468. It is not adding to the punishment, and is authorized at military law, for the commander who ordered the original commitment, or his proper superior, to change the place of confinement of a prisoner, if such a change is required by the exigencies of the service, provided that no more severe species of confinement than that contemplated in the sentence is enforced after the transfer. XXI, 49, November, 1865; XXXIX, 659, September, 1878; XLI, 123, February, 1878. 1469. Where the sentence directs confinement at hard labor "in such place as the reviewing authority may direct," or words to that effect, the reviewing authority may, the offence warranting it, designate a penitentiary; but if in such a case he designates a military post as the place of confinement, the place of confinement cannot, pending its execution at the post, legally be changed to a penitentiary. Card 1875. November, 1895. * * * 1470. The Sundry Civil Act of March 2, 1895, provided for the transfer of the Military Prison at Fort Leavenworth, Kansas, from the Department of War to the Department of Justice, the prison to be thereafter known as the United States Penitentiary and "to be used for the confinement of persons convicted in the United States Courts or convicted by courts-martial of offences now punishable by confinement in a penitentiary and sentenced to imprisonment of more than one year." Where a soldier had been prior to this transfer duly convicted by court martial and sentenced to dishonorable discharge and penitentiary confinement, but the confinement was mitigated to imprisonment in the military prison at Fort Leavenworth (a well established form of mitigation in the military practice),-held that, after the transfer of the prison to the Department of Justice, to hold the prisoner therein would be in fact transferring him from a military prison to a penitentiary, thereby adding to his punishment without authority of law. Card 187, June, 1895. See Card 7450, December, 1899. 1471. Persons convicted by courts-martial and sent to the United States Penitentiary under the provisions of the Sundry Civil Act of March 2, 1895, cannot be turned over to a United States marshal for transportation to the penitentiary, but must be delivered there by the military authorities. Card 1201, July, 1895. 1472. Prison authorities have no right to open and inspect letters addressed to or sent by their prisoners without the consent of the latter. They can however retain such letters unopened which may come into their possession until such time as the parties may be tried or released, or the letters otherwise disposed of under judicial process.1 Card 2469, July, 1896. 1473. While the authority upon whom it devolves to execute a sentence of confinement is not authorized to add to the punishment adjudged, he is, on the other hand, not justified in executing the same in so indulgent a manner as to divest the punishment of its intended and legitimate force and effect. Thus where certain prisoners, sentenced to terms of confinement on conviction of grave offences, were, while in ordinary good health, permitted to be employed upon honorable duties as clerks, &c., in the offices attached to (and one of which was outside of) the prison, held that such employment was in deroga 1See Circ. 8, A. G. O., 1896; also U. S. Postal Guide, May, 1896, p. 13. tion of the proper requirements of a sentence of imprisonment and should be ordered to be discontinued. XI, 544, March, 1865. 1474. Where a soldier, while undergoing a sentence of confinement, was, by mistake, released by the post commander before the expiration of his legal term, held that the department commander by whom the sentence had been approved was legally authorized to order the soldier to be re-committed for the purpose of completing his punishment. XXVII, 429, December, 1868. 1475. Where a soldier, after the imposition by the court in his case of a sentence of confinement but before action had been taken upon the same by the reviewing authority, escaped from custody, and, after the sentence had been duly approved and promulgated, was arrested, held that he would legally and properly be committed to the confinement adjudged. XXIX, 7, June, 1869. So a soldier who escapes from custody pending the execution of a sentence of confinement, and subsequently is arrested or surrenders himself, may legally be remanded to serve out his term as in a case of a civil prisoner. XXXVIII, 119, July, 1876. 1476. Where a soldier, pending the execution of a sentence of confinement (at a military prison or in the guard house of a post), becomes ill and is removed to the hospital for treatment, held that the time spent in hospital is not to be required to be made good by additional confinement at the end of the term of confinement imposed by the sentence. A term of confinement is continuous except when interrupted by escape. In a case of escape, the prisoner will, upon recapture, properly be held to serve out the unexpired part of the sentence; but to require that a prisoner should make good time spent in hospital would be in fact adding to the punishment and illegal. No "usage" can justify such action. 46, 176, March, 1891; 51, 146, December, 1891; 59, 173, April, 1893. 1477. The discharge, by executive authority under the 4th Article of War, of a soldier whose enlistment has not expired but who is undergoing a term of imprisonment imposed upon him by a sentence of court martial (which did not also include the penalty of dishonorable discharge, or imposed it to take effect at the end of the imprisonment), held to operate not merely as a discharge of the soldier from his enlistment but as a remission of the unexecuted term of his confinement and to entitle him to be set at liberty. XXXI, 556, August, 1871; XLI, 350, July, 1878. 'This opinion was adopted and published in Circular letter from the War Department to department commanders, Aug. 12, 1871. And note an instance of its application to the cases of twenty three prisoners-in G. C. M. O. 118, Dept. of the Missouri, 1871. |