Frank Grasso, Appellee-Petitioner v. John J. Norton, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellants-Respondents

PEINBERG, Circuit Judge

(concurring and dissenting):

I concur in Parts I and II of the majority opinion. I dissent from Part III and concur in Part IV.

In Parts I and II, the majority opinion persuasively demonstrates that the Parole Board is supposed to give a prisoner sentenced under section 4208(a)(2) “serious and meaningful parole consideration at an earlier date than the one-third point of his sentence” and that “institutional performance and response to rehabilitative programs will be given due effect by the Parole Board in determining whether parole should be granted.” Ante, 33. In addition, (a)(2) prisoners at the very least should “be given no less effective and meaningful parole consideration” than prisoners sentenced under 18 U.S.C. § 4202 . Ante, 35.

This case demonstrates that carrying out these worthwhile objectives can be difficult unless great care is taken to avoid conflict among them. Parole consideration after only a few months cannot possibly take into account individual response to a prison program. Not enough time has gone by to consider rehabilitation. Yet for the 17-18 per cent of (a)(2) prisoners who are released fairly quickly, 1 the first parole hearing after two or three months is a valuable procedure. But for those — like appellee Frank Grasso — who are not released pri- or to the one-third point in their sentences, the (a)(2) sentence may turn into a trap. Such a prisoner may never get an effective opportunity, by personally appearing before Parole Board hearing examiners, to persuade the Board that his performance in prison has been remarkable. When that happens, an (a)(2) prisoner is not treated for parole consideration at least as well as other prisoners. He is treated worse.

In sentencing appellee Frank Grasso, Chief Judge Foley told him that:

[T]he sentence in this type of case is in your favor. You are sentenced under Title 18, Section 4208(a)(2), which means that the Board of Parole may determine your eligibility for parole. *39 It depends upon your behavior at Dan-bury, .... The Board of Parole will determine when they think you are eligible to be released to the public.

As the majority opinion makes clear, ■both Congress and most sentencing judges agree with Judge Foley that rehabilitation is the most important criterion in determining whether an (a)(2) prisoner should be released. An empirical study by the Yale Law Journal of judges’ attitudes confirms this impression. Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810 , 890 n. 388, 894 (1975). 2 On the other hand, only a few of the factors considered in the Board’s new Guidelines are not available to, and presumably considered by, judges at the time of sentencing. Id. at 824 . In fact, “in its choice of criteria” for the Guidelines the Board has “abandoned] any attempt to condition release upon rehabilitative factors.” Id. at 826 . The justification for the Board’s position may be the inability of anyone by any method to predict which prisoners will successfully rejoin society upon their release. Id. at 826-28 . But we need not decide whether the Board is correct because the issue is irrelevant. Congress has not removed rehabilitation as the most important standard governing release, at least under (a)(2). Therefore, both this court and the Board are bound to respect the intent of Congress expressed in section 4208(a)(2).

Given the overriding importance of rehabilitation in the statutory scheme, the Board is obliged to give an (a)(2) inmate full opportunity to present his case for release at a time when it can be made effectively. Part III of the majority opinion concludes that a file review at the one-third point can adequately assess the inmate’s rehabilitation when coupled with the results of the full-scale hearing held at the beginning of the prison term. With all respect, I disagree. Compared to a personal hearing, a file review cannot explore as effectively the intangible personal factors which determine the inmate’s progress to a productive role in society. If anything does lead hearing examiners to recommend to the Board decisions outside of the Guidelines, it is still an indication of rehabilitation. See 84 Yale L.J. at 829-30, 833-41.

Moreover, while perhaps the Board could, in its discretion, deny all inmates a chance to present in person their rehabilitative progress, it has commendably not chosen to do so. Since other adult prisoners are given this opportunity by the Board, to be consistent with the greater flexibility inherent in (a)(2), an inmate sentenced under the latter section must be treated at least as well. But an (a)(2) prisoner does not have as effective an opportunity as other prisoners to demonstrate exceptionally good institutional achievement. The (aX2) prisoner’s opportunity is inferior because (1) his personal hearing comes too early to show proven rehabilitative achievement and (2) when enough time has gone by to demonstrate such institutional rehabilitation, he cannot urge it in person accompanied by a representative, such as his case worker. 3 The key assumption of the majority on this issue is that “the appearance of the prisoner in person at that point would [not] be of any material aid to the panel of examiners in reaching an informed decision.” At 36. The plain fact is that at that point, the (a)(2) prisoner’s institutional adjustment was meant by Congress and the sentencing judge to be the most important consideration. If having a personal hearing has any value at all — and I believe that all of us on this panel agree that it does— then having a personal hearing at this time is crucial. 4

The Yale article points out, 84 Yale L.J. at 891:

Although the Board’s rationale is understandable — since the rehabilitation envisioned by the (a)(2) provision is no longer measured — its efforts to achieve equality here result in unequal *40 treatment for (a)(2) sentencees. Such treatment seems inconsistent with the clear congressional policy expressed in the (a)(2) statute, and the Board’s failure to provide special consideration for these prisoners may therefore be unlawful. [Footnotes omitted.] 5

Part II of the majority opinion does not go that far, holding merely that (a)(2) prisoners must at least “be given no less effective and meaningful parole consideration than 4202 prisoners.” For the reasons discussed above, the Parole Board’s practices do not meet even this less demanding standard.

Since the procedures used by the Parole Board give insufficient weight to the congressional emphasis on rehabilitation as a standard for release of (a)(2) prisoners and, in fact, treat them less favorably in this respect than other inmates, I dissent from Part III of the majority opinion. I concur in Part IV, which affirms Judge Newman’s grant of the writ discharging Grasso from custody-

. Grasso v. Norton (Grasso II), 376 F.Supp. 116 , 119 n. 2 (D.Conn.1974).

. One of the student authors • of this article was on the brief for appellee in this case.

. 28 C.F.R. § 2.12 (a) (1974); see 84 Yale L.J. at 840-41 & nn. 138, 141.

. See Grasso II, supra, 376 F.Supp. at 118 .

. The authors go on to point out that

given the existence of the (a)(2) statutory provision the Board ought either to have sought congressional authorization for its action [abandoning assessment of rehabilitation in the Guidelines] or to have made special provision in its reforms to take account of the (a)(2) sentencing alternative.

84 Yale L.J. at 891 n. 393.