Adams, Gibbons and Max Rosenn, Circuit Judges.
This case raises an important problem of statutory construction dealing with the "savings provision" of the new drug abuse act that reorganized the federal criminal narcotics laws.
In late 1970, Congress enacted the Comprehensive Drug Abuse and Control Act, P.L. 91-513, 84 Stat. 1242, 21 U.S.C. § 801 et seq. That statute, effective May 1, 1971, altered the substantive provisions of the federal criminal laws relating to narcotic drugs and marihuana, and revised the penalty structure previously established for violations of the narcotics laws.
Whereas the old law specified mandatory sentences, the new Act enables judges to exercise discretion. However, the new Act contains a "savings provision," which reads:
"Prosecutions for any violation of law occurring prior to the effective date [of the Act] shall not be affected by the repeals or amendments * * *." P.L. 91-513, § 1103(a), reprinted at 21 U.S.C.A. § 171 (annotation).
On May 13, 1971, a federal grand jury indicted appellant Audrey Brickley and others for violations of the drug laws. The violations occurred prior to May 1, the effective date of the Act. After a jury trial at which two co-defendants were acquitted, appellant and another co-defendant were convicted of a conspiracy to sell cocaine and the sale of the drug. Appellant was sentenced under the provisions of the old law, 26 U.S.C. §§ 4705(a), 7237(d), to two mandatory five-year concurrent prison terms.
At the time of sentencing, the trial judge was faced with conflicting decisions from two courts of appeals: one holding that the sentencing procedures of the new Act applied to crimes committed before its effective date, United States v. Stephens, 449 F.2d 103 (9th Cir. 1971); the other holding that the sentencing provisions of the new Act applied only to crimes committed after the effective date of the Act, United States v. Fiotto, 454 F.2d 252 (2d Cir.), cert. denied, 406 U.S. 918, 92 S. Ct. 1769, 32 L. Ed. 2d 117 (1972).
Although the trial judge stated that if Stephens were the law, he would consider the imposition of a sentence less than the mandatory term, he indicated that he felt constrained to follow the interpretation of the Act found in the Fiotto case.
It is undisputed that the violation of law giving rise to this case occurred prior to the effective date of the Act. The appellant asserts two principal arguments: first, that the purpose of the "savings provision" is to prevent the abatement of "prosecutions which had already begun under the old act"; and second, that a prosecution is terminated by a judgment of conviction, so that the savings provisions cannot apply to frustrate the repeal of the mandatory sentencing sections.
The process of statutory construction is akin to a journey on a narrow and sometimes obscure path. The language of the legislature provides the map to guide the way, but on occasion the chart seemingly leads in the wrong direction. In such cases, it is tempting for judges, in order to correct what appears to be the error, to supply either the meaning they deem appropriate, or the meaning they believe the legislature sought. Yet, our tripartite system of government requires that judges be pathfinders rather than trail-blazers, and we must follow the course set for us even though it appears that the destination is not the one the legislature may have desired.
The first of appellant's contentions does not present a difficult question of statutory construction. The words of the statute regarding the question of abatement are unequivocal. Appellant would have us limit the Act by interpreting it to read "Prosecutions initiated prior to the effective date for violations of law shall not be abated." However, to do so would require us, in effect, to redraft the Act in a manner inconsistent with its plain language. This we cannot do since the scope of the judicial function is to adjudicate, not legislate.*fn1
The appellant's second point, dealing with the term "prosecution," presents a more difficult problem. Here, because of the split among the Circuits,*fn2 we are faced with a case "in which there is a fair contest between two readings, neither of which ...