Moore, Friendly and Hays, Circuit Judges. Moore, Circuit Judge (concurring). Friendly, Circuit Judge (concurring).
Appellant, Morton Sobell, was arrested on August 18, 1950, and charged with violating the Espionage Act.*fn1 Bail was set at $100,000. Sobell did not post bail and remained in custody until, following his indictment and subsequent conviction, he was sentenced on April 5, 1951, to imprisonment for 30 years, then the statutory maximum term for the offense of which he was convicted.
This action was brought in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 2255 (1964), to correct the 30-year sentence of imprisonment by crediting Sobell with the time served in custody for failure to post bail between the date of his arrest and the date sentence was imposed -- a period of approximately 7 1/2 months. The district court denied the relief sought. We reverse.
Appellant advances three reasons for crediting him with the time spent in presentence custody: he is entitled to credit pursuant to 18 U.S.C. § 3568 (1964); it was the intent of the sentencing court to give him credit; and the denial of credit violates due process and equal protection by imposing on one financially unable to post bail an additional term of imprisonment. We agree that Section 3568 is properly to be construed as requiring that credit be granted; we do not consider appellant's other contentions.
Section 3568 prescribes the method of computing the term of federal sentences of imprisonment. Until 1960 it did not on its face require that any prisoner be given credit for presentence time spent in custody.*fn2 In 1960 Congress, incorrectly assuming that the courts gave defendants such credit as a matter of right except in cases involving minimum mandatory sentences, in which the courts thought they lacked the authority to give such credit,*fn3 sought to eliminate the supposed disparity of treatment by amending Section 3568 to require that federal prisoners be given credit toward service of their sentences for presentence time spent in custody for failure to post bail where the offense for which the sentence was imposed required the imposition of a minimum mandatory sentence.*fn4
In 1966 the United States Court of Appeals for the District of Columbia Circuit considered the effect of the 1960 amendment on the sentence of a prisoner who, as is the situation with Sobell, was sentenced to the statutory maximum term for an offense which did not require the imposition of a minimum mandatory sentence and who was not given credit for presentence time spent in custody. Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966). The court believed that the amendment presented an equal protection problem, since it would be irrational to require that credit be afforded in minimum mandatory sentence cases, which generally involve the more serious crimes, while not requiring it in lesser-offense cases.
Stapf has been followed in Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); United States v. Smith, 379 F.2d 628 (7th Cir. 1967); Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967); and Lee v. United States, 400 F.2d 185 (9th Cir. 1968). As a result of those cases the Bureau of Prisons promulgated regulations requiring that all prisoners sentenced to maximum terms be given credit for presentence time spent in custody. However, because each of the cases involved prisoners who had been convicted after the effective date of the 1960 amendment, the Bureau of Prisons' regulations were limited to those prisoners who were sentenced between October 2, 1960 (the effective date of the 1960 amendment) and September 19, 1966 (the effective date of the Bail Reform Act, 18 U.S.C. §§ 3041, 3141-43, 3146-52, 3568 (Supp. III 1965-67)).*fn5
Sobell was sentenced before September 19, 1960. The issue before us is whether he must be afforded credit for the presentence time that he spent in custody. We think he must.
The 1960 amendment makes sense only if we assume that the courts did grant credit except where a minimum mandatory sentence was required. Thus the rationale of Stapf, which upheld the statute against a constitutional challenge by construing it to avoid its seeming irrationality, would require that credit be afforded in pre- as well as post-1960 cases. As the court said in Stapf :
"This is not a case * * * where Congress removed part of an evil but disclaimed action on the rest. This is a case, rather, where Congress acted as to the only evil that required legislative action, and assumed that in all other instances equivalent relief would be provided by the courts. In such context the court acts unlawfully when it effectuates rather than avoids an arbitrary classification." 367 F.2d at 329-30 (footnote omitted).
That credit should be afforded for sentences imposed before the effective date of the 1960 amendment is also supported by the policy adopted in the Bail Reform Act of 1966*fn6 which recognizes that for purposes of serving a sentence all time spent in jail should be credited.*fn7
To the extent that Stapf and the cases that followed it limit relief to persons sentenced after the effective date of the 1960 amendment, we disagree.*fn8
We are not deterred in our decision to follow Stapf by the remark in United States ex rel. Sacco v. Kenton, 386 F.2d 143, 144 (2d Cir. 1967), that this court "has never adopted the holding in Stapf." The court in Sacco noted that its discussion of ...