§ 1607. § 1608. Excessive fines and cruel punishment prohibited. § 1609. CHAPTER 49. PUNISHMENT, CUSTODY AND DISCHARGE OF PRISONERS. § 1606. Judgments for fines enforced by execution against defendant's property. Release of poor convict for inability to pay fine. Expenses of transportation, detention and execution of Federal prisoners. § 1610. § 1611. § 1612. transportation of prisoners to Federal prisons-expenses. Marshal may provide jail where use of State jail not allowed. —and otherwise provide safe-keeping of prisoners. § 1613. § 1614. § 1615. § 1616. Federal convicts in State prisons to be under State official's con- Right to commit to State prison outside judicial district. § 1617. § 1618. Deduction from term of imprisonment for good conduct. § 1619. § 1620. Actual reasonable cost of keeping prisoners to be paid. § 1621. § 1622. § 1623. When prisoners committed to house of correction or reformatory. etc. § 1624. -Attorney General to designate houses of refuge and contract for § 1625. § 1626. subsistence. Prisoners to be provided with money and clothes on discharge. —similar provisions as to discharge from Federal prisons. § 1627. Removal of prisoners in case of contagion or epidemic. § 1628. Provisions respecting Federal prisons. § 1629. Attorney General to supervise Federal prisons. § 1630. —to designate to which prisons convicts to be committed. —may transfer prisoners elsewhere to Federal penitentiary. § 1631. § 1632. Employment of prisoners in Federal prisons. § 1606. Judgments for fines enforced by execution against de fendant's property. In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced: Provided, That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid. R. S. § 1041, U. S. Comp. Stat. 1901, p. 724. The above section was first enacted in 1872.1 If nothing is said in the judgment as to the mode of enforcing it, a fi. fa. or a capias pro fine may be issued. The above section gives to the government no greater rights than are given to private judgment creditors, hence a State law forbidding the levy of execution on real estate of the defendant is enforceable against the United States. So also where the State law exempts the defendant's homestead the United States cannot levy execution thereon.4 § 1607. Release of poor convict for inability to pay fine. When a poor convict, sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been confined in prison thirty days, solely for the nonpayment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: "I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of [State where 1 Act June 2, 1872, c. 225, § 12, 17 Stat. 198. 2 Ex parte Teuscher, 23 Int. Rev. Rec. 202, Fed. Cas. No. 13.846. 3 Clark v. Allen, 117 Fed. 699. 4 Fink v. O'Neil, 106 U. S. 272, 27 L. ed. 196, 1 Sup. Ct. Rep. 325. oath is administered]; and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts. R. S. § 1042, U. S. Comp. Stat. 1901, p. 724. The above section was first enacted in 1872.6 It is almost identical in phraseology and apparently identical in substance with R. S. § 5296, which is therefore omitted from this Code. The commissioner's fees for the examination and certificate in cases of applications under the above section are five dollars a day for the time necessarily employed.8 Where a convict is pardoned on the condition that he pay fine and costs, he is not entitled to his discharge under this section until he has served his term, and thirty days additional as provided in this section. This sec tion seems to imply that a fine imposed may be enforced by imprisonment until it is paid.10 There is nothing however to indicate that such imprisonment may be extended beyond the maximum term of imprisonment fixed by Congress in punishment of the particular offense, and no authority for imprisonment in a State prison in default of the payment of the fine imposed.11 § 1608. Excessive fines and cruel punishment prohibited. Excessive bail shall not be required, 13 nor excessive fines imposed, nor cruel and unusual punishments inflicted. Eighth Amendment, U. S. Constitution. This amendment applies to Federal, and not State, action. 14 Punishment is defined as cruel when involving torture or a lingering death or where inhuman or barbarous.15 Punishment by death is not cruel or unusual in the legal sense; 16 nor is death by shooting; 17 or electricity;18 nor is the infliction of increased punishment for a second offense. 19 A sentence for the full term authorized by statute cannot be declared cruel and unusual within this amendment.20 The keeper of a State jail, being 6 Act June 1, 1872, c. 255, § 14, 17 Stat. 198. 7See U. S. Comp. Stat. 1901, p. 3,608. 8 Ante, § 723. In re Ruhl, 5 Sawy. 186, Fed. Cas. No. 12,124. 10 In re Greenwald, 77 Fed. 590. 11 Idem. 18 See ante, § 1543. 14 Pervear V. Commonwealth, Wall. 480, 18 L. ed. 608. 16In re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930. 17 Wilkerson v. Utah, 99 Ü. S. 135, 25 L. ed. 345. 18In re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930. 19 Moore v. Missouri, 159 Ú. S. 677, 40 L. ed. 301, 16 Sup. Ct. Rep. 179; McDonald v. Massachusetts, 180 U. S. 311, 45 L. ed. 542, 21 Sup. Ct. Rep. 5 389. 20 Jackson v. United States, 102 15 In re Kemmler, 136 U. S. 436, 34 Fed. 473, 42 C. C. A. 452. a Federal officer for the purpose of properly caring for Federal prisoners, may be punished by the Federal court.1 § 1609. Expenses of transportation, detention and execution of Federal prisoners. All the expenses attendant upon the transportation from place to place, and upon the temporary or permanent confinement of persons arrested or committed under the laws of the United States, as well as upon the execution of any sentence of a court thereof respecting them, shall be paid out of the treasury of the United States in the manner provided by law. R. S. § 5536, U. S. Comp. Stat. 1901, p. 3719. § 1610. transportation of prisoners to Federal prisons-ex penses. The transportation of all United States prisoners convicted of crimes against the laws of the United States in any State, District or Territory, and sentenced to terms of imprisonment in a penitentiary, and their delivery to the superintendent, warden, or keeper of such United States prisons, shall be by the marshal of the district or Territory where such conviction may occur, after the erec tion and completion of said prisons. The actual expenses of such marshal, including transportation and subsistence, hire, transportation and subsistence of guards, and the transportation and subsistence of the convict or convicts, be paid, on the approval of the Attorney General out of the judiciary fund. 3 § 5 of act March 3, 1891, c. 529, 26 Stat. 839, U. S. Comp. Stat. 1901, p. 3726. § 1611. Marshal may provide jail where use of State jail not allowed. In a State where the use of jails, penitentiaries, or other houses is not allowed for the imprisonment of persons arrested or com mitted under the authority of the United States, any marshal in such State, under the direction of the judge of the district, may hire, or otherwise procure, within the limits of such State, a convenient place to serve as a temporary jail. R. S. § 5537, U. S. Comp. Stat. 1901, p. 3719. 1In re Birdsong, 39 Fed. 599, 4 L. L.R. 628. 3"That" is omitted. The above section was carried forward into the Revised Statutes from an act of 1833.5 In cases under this section no special process of commitment is necessary.6 A Federal prisoner cannot object to imprisonment in a State prison on the ground that there was no authorization of such a course by the State legislature. Such objection can only be made by the State.7 § 1612. — and otherwise provide safe-keeping of prisoners. The marshal shall make such other provision as he may deem expedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until permanent provision for that purpose is made by law. R. S. § 5538, U. S. Comp. Stat. 1901, p. 3719. The above section was enacted in 1833.9 The right of Federal prisoners to be protected is a constitutional one,10 and the marshal owes a duty to keep them safe and protect them from injury.11 § 1613. Federal convicts in State prisons to be under State official's control. Whenever any criminal, convicted of any offense against the United States, is imprisoned in the jail or penitentiary of any State or Territory, such criminal shall in all respects be subject to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which such jail or penitentiary is situated; and while so confined therein shall be exclusively under the control of the officers having charge of the same, under the laws of such State or Territory. R. S. § 5539, U. S. Comp. Stat. 1901, p. 3720. The above section was originally enacted in 1834.12 An act of 1887 makes it unlawful for any government officer, agent or servant to permit any State officer to hire out United States convicts incarcerated in a State prison.13 State jails where Federal prisoners are confined are not under the control of the marshal nor is the jailer's custody that of the marshal.14 5 Act March 2, 1833, c. 57, § 6, 4 Stat. 634. 6 Erwin v. United States, 37 Fed. 470, 2 L.R.A. 229. 7 Ex parte Geary, 2 Biss. 485, 10 Fed. Cas. No. 5,293. 9 Act March 2, 1833, c. 57, § 6, 4 Stat. 634. 10 Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617. 11 Asher v. Cabell, 50 Fed. 818, 1 C. C. A. 693. 12 Act June 30, 1834, c. 163, 4 Stat. 739. 13 Act Feb. 27, 1887, c. 213, § 1, 24 Stat. 411. 14 Randolph v. Donaldson, 9 Cranch, 76, 3 L. ed. 662; Erwin v. United States, 37 Fed. 470, 2 L.R.A. 229. |