
    UNITED STATES v. BALBAS.
    San Juan,
    Criminal,
    No. 673.
    MEMORANDUM AS TO SENTENCE.
    Criminal Law — Reformation.
    1. The question of reformation can enter only slightly in political cases; it- concerns rather prison methods than the sentence itself.
    
      Punishment.
    2. The primeval object of sentences is punishment of the offender, whether by fine, imprisonment, or both.
    Punishment — Deterring Offender.
    3. Where the offense is committed through a newspaper in Spanish among a people, on account of the language, outside of Amer-can influences, the question of deterring future offenders is of a special force in war times.
    Imprisonment — ’Length.
    4. In the case of a political offense it is important that the offender be restrained for the remainder of the war and including a time thereafter during which political readjustment would be in progress. The question of the press has always been a serious one in Latin countries. The faithful co-operation of the press is very important in time of war. There must be no attacks on the military forces by persons protected by the flag.
    Penitentiary — San Juan.
    5. Imprisonment in the penitentiary at San- Juan cannot secure the best results, and in the case of imprisonment exceeding oné year the court will select Atlanta penitentiary for political prisoners. Each count being a separate serious offense, the sentence of each should ordinarily exceed one year so as to secure penitentiary imprisonment.
    Opinion filed December 17, 1917.
   HAMILTON, Judge,

delivered tbe following opinion:

As tbis case is important in itself and as a precedent, and as tbe imprisonment imposed may be'tbe subject of consideration .after tbe term of tbe officials engaged in tbe trial, it seems proper to record tbe reasons leading to tbe conclusions reached.

Tbe object of punishment of criminals is threefold, or perhaps fourfold, and these elements have been taken into account.

1. Tbe object often uppermost in tbe minds of criminologists is reformation of tbe criminal, but that can enter only to a very slight degree in political crimes, such as tbe one at bar. Tbis point must be left more to prison methods than considered in tbe imposition of a sentence itself.

2. Tbe primeval object of sentences is punishment of tbe offender. The law infringed in tbis case provides for either imprisonment or fine, or for both imprisonment and fine, and it seems proper to take tbe latter course. Tbe offense committed was a publication in a newspaper, presumably for financial gain, and so a fine should be included in tbe punishment, while, on tbe other band, reasons to be mentioned show that the principal punishment should be imprisonment. Therefore tbe fine should be lighter proportionately than tbe punishment imposed.

3. All crimes are against tbe public, against the government, in one sense or another, even though they be the injury of only one man, as in the case of murder. But the infringement of the law in this case is a public crime of a different character, because interfering with the military forces of the United States in time of war strikes at the very vitals of government itself. ITow much harm was done in this particular case it is impossible to say, .but the jury has found, and the court sees no reason to differ, that the intent of the act committed was thoroughly bad. It was a publication largely in Spanish and for the Spanish speaking people of Porto Pico. One publication was in English, but would' reach many of the educated class of the same people. While it might pot be competent evidence in the trial of the case, nevertheless in imposing sentence the court cannot be ignorant of and cannot leave out of account the fact that the language used and the mode of expression could be,, and in this case was, a screen for worse than what was actually said, and was published among a people living largely on reports of different kinds, — people who are more excitable than Anglo-Saxons, and on account of speaking Spanish live to a large extent outside of American national influences. There are also many Spaniards in Porto Eico who have preserved their old allegiance. They constitute an important element, perhaps the most important commercial element of the population. The prisoner is shown to have made some attempt to preserve his Spanish citizenship. It is not in evidence that he is intimate with this element, but the court has reason to believe such is the case. There must be no hostile neutrals under the American flag, and the articles of the prisoner would tend to encourage such a class. The defendant knew all these circumstances and took advantage of them. It must be made undesirable for anyone else to repeat such conduct. Porto Eico is in an exposed position from a military and naval point of view, and unsettled politically, and great care must be exercised in regard to its people and institutions, especially in war time. One object of punishment is to deter future offenders, and that applies with especial force to the nature of the case at bar.

4. In regard to political offenses, particularly those connected with the misuse of public speech and the freedom of the press, it is important to a country in time of war that the offenders be restrained for the length of the war, that is to say, that they be put in a place where during hostilities and the excited condition of public mind connected with war, they can do no harm. Imprisonment, therefore, should be for a length of time that will secure this result, and must include a reasonable period after the probable length of war, during which '"great political readjustments may be in progress. The question of the press has always been a serious one in Latin countries. Even, during tbe great epoch of tbe Constitution of 1812 tbe Duke of "Wellington bad to comment upon tbe excessive freedom of utterance at Seville, and tbe same bas been true in Spain and America more or less ever since tbat time. Spanish bistory developed a particularistic tendency in tbe peninsula, and tbe additional elements making up tbe Latin-American character seem to bave intensified individualistic tendences. Porto Pico is rapidly changing, but race features still remain as well as tbe Spanish language. Mr. Justice Holmes bas applied tbe word “meridianal” to tbe forcible, not to say ultra, language sometimes used in publications on this Island. Gandia v. Pettingill, 222 U. S. 452, 458, 56 L. ed. 267, 268, 32 Sup. Ct. Rep. 121. Tbe war has changed conditions as to governmental affairs. Tbe faithful co-operation of tbe press of tbe country is very important in time of war. The prisoner in this case has taken criminal advantage of tbe freedom of tbe press to continue in time of war, although in a different form, tbe propaganda of separation from America which be bad been making in time of peace. He is not indicted for tbat previous propaganda, but it is in evidence and what be said then as well as bis printed utterances after tbe Postoffice authorities stopped bis paper must be taken into account by tbe court in considering prevention for tbe future a light punishment for so earnest, not to say dangerous, a man would be an incentive to himself and to others to repeat the same kind of conduct. • This cannot be permitted in time of war. There must be no rear attack on the military forces of America by persons protected by our flag.

5. Tbe report of tbe grand jury recently made to tbe court shows tbat these objects cannot be secured by imprisonment in tbe penitentiary at San Juan. This penitentiary is not suitable for such cases. Tbe place of confinement is by Revised Statutes, § 5546, Comp. Stat. 1916, § 10,547, left to tbe discretion of tbe Attorney General of tbe United States; and bis construction is tbat in a case of imprisonment exceeding one year be will designate for political prisoners from Porto Eico tbe Federal penitentiary at Atlanta, Georgia. It seems proper, therefore, tbat tbe imprisonment on each count, each of wbicb in tbe eye of tbe law is a separate crime, should exceed one year.

Tbe result, therefore, is tbat tbe prisoner should be sentenced to pay a fine of $1,000 on each count and to imprisonment for two years on each count. This will carry tbe term well over any probable duration of tbe war and its readjustments, and will leave it open to tbe executive power upon a change of circumstances to take any action wbicb may then seem proper. ' Tho court must act now with regard to tbe facts as they present themselves. Tbe executive may interfere later to make any change, if any appear proper.  