Respondents Reply Brief — United States Parole Commission v. Geraghty

FOR ARGUMENT

Supreme Court, U.S.

nib E BD

No. 78-572 SEP 27 1979

SPRIOMREEREDAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES PAROLE COMMISSION, ET AL..

PETITIONERS

Vv.

JOHN M. GERAGHTY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

WapbDE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

————

INDEX

CITATIONS

Becton v. Greene County Board of

Education, 32 F.R.D. 220 ......................

Board of School Commissioners v.

ME RTI, BID ve vescesccscasgccceccevecssccs

Clark v. Thompson, 206 F. Supp. 539,

aff'd, 313 F. 2d 637, cert. denied, 375

SEU, MINE “aU bs pilsnavvsnsekeharavcenindsesunesssni'vstesians

Duke Power Co. v. Greenwood County,

ACME: Ula vesvecichenclesdivisesiniessevsudesnses

East Texas Motor Freight v. Rodriguez,

MMM UNNE a ledadkbccnckeeascssssvsresestionsstescevsse

Franks v. Bowman Transportation Co.,

I eas icicectsddmsakscarssnevnacncssonsveses

Fuller v. Volk, 351 F. 2d 323 ........cccceeeeee

Gerstein v. Pugh, 420 U.S. 103 ...........0

Hall v. Beals, 396 U.S. 45 ....ccccccceeeeeeeeeeees

Izsak v. Sigler, No. 79-2507 (9th Cir.

OE ne

Jacobs v. Board of School Commissions,

ys, SE wilosbinpeadvvadecaiconasssssesssese

Kremens v. Bartley, 431 U.S. 119 o............

Memphis Light, Gas & Water Division

i MG MEMORIES DB slenncctsccccieeevecscsevscsedns

il

Page

Cases--(continued):

Miller & Miller Auctioneers v. GW.

Murphy Industries, Inc., 472 . 2d

| MRE ELIE ASF eR ane OSSD BIOTA DUS V OR IAENE ERE ESOP ED %

North Carolina v. Rice, 404 U.S. 244 cee |

Owen Equipment & Erection Co.

OE a7 AE ais I savavevsuelicsacttactarkovadereets 2

Pacific Fire Ins. Co. v. Reiner, 45

eg NI COU cass otek sea kediccglagieseareapmansine bayacanedaeein outer 3

Pasadena City Board of Education v.

Senvemter,, 427 U.S. B26 ois ccccsccoscccseccossssoscceses 2, 6

Pelelas vy. Caterpillar Tractor Co.,

113 F. 2d 629, cert, denied, 311 U.S.

ISHS Ce ee TSW ae SR A 8 eee pent 3

Phillips v. Sherman, 197 F. Supp. 866 ............... 3

Richardson v. Ramirez, 418 U.S. 24 ............. 3.4

Shahid v. Crawford, 599 F. 2d 666. .............6064. 13

Share v. Air Properties G. Inc.,

MR I Sree out csiklds toes padedidbniadeoenspaniseoledans 7

Soars ¥. owe, GP U.S. FOS secescissiiccccssssones 2&3

Spangler v. Pasadena City Board of

Sree, DOU FT. SD, Fo ccaicacvcncecccsnain cones 6

Speed v. Transamerica Corp., 5 &.R.D.

SOM kavaieabtidaie adic deddacekdeabucenca cansvelaeeie cL sinabias haba 3

United Airlines, Inc. v. Me Donald,

ES KE ia Di acrctancudaceUcadnetatuammedeiadadis ol nabs 7

United States v. Addoniziv, No. 78-156

I ic ee a 9. 14

see

Page

Cases—(continued):

United States v. Grayson, 438 U.S. 41 oo... 9

Weeks v. Bareco Oil Co., 125

Fc; ME TOUR Manenksdadiecagnandetnce ped oasandaiacandubesminthcinia 3

Constitution, statutes, regulations, and rules:

United States Constitution, Article

BUD,’ sisichemaedasandaduucintencinccenntea naan Bp ae Oe

| OD SESSA, SUED \sckbisccdcowensdnnassnaneasanppeeatanennnnes 13

OU, RRA. SED civevncenaccisnnsbeassneenss 10, 11, 12, 13

Parole Commission regulations (44 Fed.

Reg. 3404-3410, 26540-26552 (1979)),

Be Gad ee 1 Oe. clin 10

IE BSI sacks picnsnenconcsciciupeckaceubbunsaasens 10

RRO FEY siasseritsctndlccvinscasieaiooes 10

SeCeIOW THAD ones cveviecevdcevesecevctescconsexess 11

SOCIO Z. PMMA) cevcccsecscccccccccavsesccsccsesces 1]

SOCRSG FDTD kisesoicieniscescactcesatiescersvens ll

II FD is cnccckalrtedadey cnnicsncapalaxiasceense tees 13

PRI SABIE vhicakenentivprexsnessosewresavadninasoncnsss 10

I Be Sa shieccdsciccascossvcovasananctinehccs 10, 12

BE CED Georicceckccscascccshucecdesbdyscanecars 10, 12

| IE TN sicicicecschvncsicaladeloucsananaenes 10, 12

EIR POND, Sistap i ckcwailodcensinasuainaicatssasnuinasaien 12

Fed. R. Civ. P.:

RF i acapucasudecieisacaselcasieadenaieetensadinitst aces 3

iV

Constitution, statutes. Miscellaneous (continued):

regulations, and rules--(continued): Report of the United States Parole

ial OO os on ona ace tae re A 3 Commission (UDTB) ......rcccecscccrccsccccrsecesvoccesecsens 12

athe TP. cccvchentdieuisaecsuue asa 3 S. Conf. Rep. No. 94-648, 94th Cong.,

TE ie) SD ohana alee dideiacadubioninn oe: Saacae

NS | ey Ba nee Ny ee ES Ee 3

, S. Rep. No. 94-369, 94th Cong., Ist

BRAINS BE * yesasestyeosnhoonctveonsndasnsnnaguendsonatesacenysete ; Re UPD wccktacaiccnlilabavenssavejicnsnestcsuaieubarsucenies 13

ate AS ick waik dasannovccdanuelunecasmscaumenieninan 2. 3 3.0

ate BINGE oi sicscinvcasacésiticknssconatevoniasnibesstansaiess 4

Re SOM TD vaconescenedesccreceqslepptanvenqunsnskanpeqatenss 3

rie, kerk ey Rope ET Nes Ge 3

fA ARE I OTS: ces AES MYR ALIS TUE CTE LSE 3

nO + PIR Gap arrar Bm on A ONE DSP OUT 2

Miscellaneous:

P. Hoffman and L. DeGostin, Parole

Decision-Making: Structuring

Discretion, 38 Fed. Probation

7 (CUppcmeeet SOF eiciiedicsainbcntencevesdteaveasadinictdins 11

H.R. Conf. Rep. No. 94-838, 94th

Cong., 20 Sons. (97O) cdc 12

H.R. Rep. No. 94-184, 94th Cong., Ist

Sess. (1975)

9 Moore's Federal Practice (2d ed.

SD TS) .ccvcecccsguccecdesassvsudeancesnesieneeaseienannn 7

Note, Proposed Rule 23: Class Actions

Reclassified, 51 Va. L. Rev.

G2S CUDGSD. save dcsuccckadstccscusducnieeetaeeen 3

Parole Commission, Guidelines

Application Manual (Dec. 1, 1978) ..........c.. 1]

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-572

UNITED STATES PAROLE COMMISSION, ET AL.,

PETITIONERS

Vv.

JOHN M. GERAGHTY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

1. a. Respondent contends (Resp. Br. 20) that “{t}here

is no dispute that this case presents a live, justiciable

controversy between the parole board and the unnamed

members of the putative class about the legality of the

federal parole guidelines.” But that is precisely the point

in dispute. To be justiciable under Article Ill of the

Constitution, a suit “‘must be definite and concrete,

touching the legal relations of parties having adverse legal

interests * * *.“ North Carolina v. Rice, 404 U.S. 244,

246 (1971). Federal courts may not exercise jurisdiction in

an action “that cannot affect the rights of litigants in the

case before them.” /bid. As we demonstrated on pages 21

to 23 of our opening briel, respondent's individual

challenge to the parole guidelines unquestionably became

moot on his release from prison at the end of his term of

imprisonment. No other litigant has been recognized as a

party plaintiff in this suit, and the case is therefore moot.

An. attorney's vigor and interest in continuing his

(1)

representation is plainly insufficient to establish a

constitutional case or controversy. Pasadena City Board

of Education v, Spangler, 427 U.S. 424, 430 (1976).!

But respondent (Resp. Br. 36-38) and amici (Am. Br.

27-28) argue that the members of the “putative class” have

a cognizable “interest” in the outcome of this litigation.

We do not doubt that many federal prisoners may be

interested in the resolution of the questions raised by

respondent's challenge to the parole guidelines. But these

individuals are not now parties to the litigation, nor were

they parties at the time respondent's claims became moot

or at any other time. Because the district court ruled that

the case could not proceed as a class action, the “putative

class” never “acquired a legal status separate from the

interest asserted by [respondent],” Sosna v. lowa, 419

U.S. 393, 399 (1975), and thus could not “succeed to the

adversary position of [respondent] * * * whose claim

[became] moot.” Kremens v. Bartley, 431 U.S. 119, 133

(1977). /

Respondent argues (Resp. Br. 39), however, that the

existence of an Article Ill case or controversy cannot

depend on whether or not the district court has certified

the requested class action pursuant to the procedures of

Fed. R. Civ. P. 23. We do not dispute that the Federal

Rules of Civil Procedure neither extend nor limit federal

jurisdiction. Fed. R. Civ. P. 82. See Owen Equipment &

Erection Co. v. Kroger, 437 U.S. 365, 370 (1978). But our

‘Amici are mistaken in their contention that a constitutional case

or controversy is established by an attorney's “vigorous representa-

tion of the interests of absentees * * *° (Am. Br. 12). The fact that an

attorney vigorously seeks to continue his efforts “cannot alter the

fact” that the case is moot. Hall v. Beals, 396 U.S. 45, 48 (1969). If an

attorney's vigor sufficed to create jurisdiction, the case or controversy

limitation on federal courts would have no meaning.

mootness analysis does not turn on the specific re-

quirements of Rule 23. It is Article Ill of the Constitu-

tion, not Rule 23, that imposes the jurisdictional “case or

controversy” requirement. And, under Article III, there is

no case or controversy unless the court has before it an

“actual dispute[ ] between adverse parties.” Richardson v.

Ramirez, 418 U.S. 24, 36 (1974). Rule 23, like several

other rules of civil procedure (e.g.. Rule 7 (complaint),

Rules 19, 20 and 21 (joinder), Rule 22 (interpleader), Rule

24 (intervention), Rule 25 (substitution)), provides

uniform procedures for delining the “adverse parties”

before the court and thus in determining whether any

litigants, or classes, possess a “ ‘personal stake in the

outcome of the controversy’ ™ that satisfies Article III

requirements. Franks v. Bowman Transportation Co., 424

U.S. 747, 755 (1976).

Rule 23(c)(1), which was adopted in 1966, provides that

the district court shall determine by order whether an

action may be brought as a class action. The Rule did not

alter the power of the court in this regard but instead

made explicit an authority that previously had been

implied. See Note, Proposed Rule 23: Class Actions

Reclassified, 51 Va. L. Rev. 629, 650-651 & n.64 (1965).

Before the Rule was adopted, the district courts had to

determine whether a case could be brought as a class

action, and often they ruled that cases could not proceed

as class suits. See, e.g., Weeks v. Bareco Oil Co., 125 F.

2d 84 (7th Cir. 1941); Pelelas v. Caterpillar Tractor Co.,

113 F. 2d 629 (7th Cir.), cert. denied, 311 U.S. 700 (1940);

Clark v. Thompson, 206 F. Supp. 539 (S.D. Miss. 1962),

aff'd, 313 F. 2d 637 (Sth Cir.), cert. denied, 375 U.S. 951

(1963); Phillips v. Sherman, 197 F. Supp. 866 (N.D.N.Y.

1961); Speed v. Transamerica Corp., 5 F.R.D. 56 (D. Del.

1945): Pacific Fire Ins. Co. v. Reiner, 45 F. Supp. 703

(E.D. La. 1942). It makes no difference in this case

whether the district court denied class treatment under the

4

pre-1966 practice or under Rule 23(c); the case is moot

because, under this Court's consistent rulings, the

“putative class” is not an adverse party with a cognizable

legal status. See Sosna v. lowa, supra, 419 U.S. at 399.

This conclusion is supported by the Court's reasoning

in Richardson v. Ramirez, supra. In Richardson, the

California Supreme Court adjudicated a case in which the

claims of the individual plaintiffs had expired. Because

state courts are not subject to Article II] limitations, the

California court, unlike a federal court, could “choose to

adjudicate [the] controversy simply because of its public

importance, and the desirability of a statewide decision.”

418 U.S. at 36. Before this Court could exercise

jurisdiction over the case, however, it was necessary to

determine whether the case presented an “actual dispute[ ]

between adverse parties.” /bid. The Court concluded that

there was no “present dispute” on behalf of the individual

claimants in Richardson (ibid.), but that, because the state

court “treated the action as one brought for the benefit of

[a] class” (id. at 37), the adverse class claims satisfied the

case or controversy requirement. /d. at 38-40. This was so

even though the state’s procedures for recognizing class

litigants were so disparate trom federal procedures that

there was “serious doubt” whether the class would have

been cognizable as a litigant had the case originated in

federal court. /d. at 39.2 Because the class had been

2?Amici mistakenly imply (Am. Br. 25) that the Court held in

Richardson that the mooting of the named litigants’ claims prior to

class certification did not moot the case under the case or controversy

doctrine. In Richardson the class was recognized as a party to the

litigation while the case was still pending in the state courts. It was

irrelevant for Article Ill purposes that the state court did not

recognize the class as a litigant until after the individuals’ claims had

expired. For, as the Court held, state courts—unlike federal courts—

are not limited by the Article II] case or controversy requirement that

there be an “actual dispute[] between adverse parties.” 418 U.S. at 36.

It was only because the case was in state, rather than federal, court

that the case did not become moot at the expiration of the named

litigants’ claims prior to class certification. /bid.

a”

recognized as a litigant under the state’s procedures

before the case reached this Court, the class had

“acquired a legal status separate from the interest asserted

by [the individual class representative]” (Sosna v. lowa,

supra, 419 U.S. at 399) and thus could “succeed to [an]

adversary position” (Aremens v. Bartley, supra, 431 U.S.

at 133) when the individual claims became moot. 418 U.S.

at 38-40. Accordingly, while Rule 23 and other similar

rules of civil procedure are not themselves “jurisdic-

tional,” by aligning or excluding parties to the litigation

they determine whether the courts have before them “a

live dispute between ‘live’ parties.” as Article III

requires. Kremens v. Bartley, supra, 431 U.S. at 134

n.15. See Franks v. Bowman Transportation Co., supra,

424 U.S. at 755.

b. Respondent argues (Resp. Br. 40-46) that even

though a class was not certified before his individual!

claims became moot, the case is not moot because the

“putative class” is “certifiable” (see also Pet. App. 2la

n.43).) As we demonstrated on pages 27 to 30 of our

‘This case does not, as respondent contends (Resp. Br. 47-48),

involve such inherently transitory claims that mootness will inevitably

intervene before class certification can occur. See Sosna v. lowa,

supra, 419 U.S. at 402 n.11. As we noted in our opening brief (Br. 33-

34), many prisoners serve lengthy periods of imprisonment and may

be expected, in an appropriate case, to present challenges likely to

endure for sufficient periods to obtain full review of their claims.

Nor is this a case such as that hypothesized by respondents in

Deposit Guaranty National Bank vy. Roper, No. 78-904 (to be argued

in tandem with this case), where prolonged, “deliberate conduct

designed to avoid review” has rendered moot a succession of class

action filings by the expedient of paying the individual claims of the

class representatives. As we noted in our opening brief (Br. 30-31

n.20), it is possible that in a situation where the class opponent has

undertaken a systematic course of paying the claims of individual

litigants promptly on the filing of their federal actions, the class

certification issue may avoid mootness as an issue capable of

opening brief, however, the “putative classes” in Board of

School Commissioners vy. Jacobs, 420 U.S. 128 (1975),

and Pasadena City Board of Education v. Spangler, 427

U.S. 424 (1976), were plainly “certifiable” in the district

court, but in each case the Court held that the actions

were moot because the individual litigants’ claims had

expired and a “proper class” had not been certified to

succeed as an adverse party in the litigation. There being

no adverse parties with live claims before the Court, the

Cases were simply moot.+

Jacobs and Spangler cannot be distinguished, as

respondent suggests (Resp. Br. 41), on the theory that the

“certifiability” of the class had not been raised as an issue

on appeal in those cases. In both Jacobs and Spangler,

the district court had failed to comply with the formal

certification requirements of Rule 23 but nonetheless had

repetition yet evading review. See Gerstein v. Pugh, 420 U.S. 103

(1975). But in this case, and in Roper as well, there was ample time to

rule and the district court did rule on class certification. Moreover,

the Parole Commission plainly has not engaged in “deliberate

conduct designed to avoid review” by releasing respondent at the

expiration of his criminal sentence.

4If, as respondent argues (Resp. Br. 41), the question of mootness

in this case turns on whether the putative class is certifiable, it is clear

that the case is moot. Respondent's individual claims are moot, and

there is therefore no individual litigant with a live claim in this case

who could serve as class representative for the purpose of certifying

the class. See, e.g., East Texas Motor Freight v. Rodriguez, 431 U.S.

395, 403 (1977). The “putative class” is thus not certifiable.

Respondent incorrectly relies (Resp. Br. 44) on Memphis Light,

Gas & Water Division v. Craft, 436 U.S. | (1978), for the proposition

that this case is not moot because the putative class is “certifiable.” In

Craft, the Court held that the claims of two respondents who sought

relief in damages satisfied the case or controversy requirement. The

Court noted that, because class certification had been denied, “the

existence of a continuing ‘case or controversy’ depends entirely on the

[individuals] claims * * *.” /d. at 8.

treated the case as a class action and granted class-wide

relief. Jacobs v. Board of School Commissioners, 349 F.

Supp. 605, 611-612 (S.D. Ind. 1972); Spangler v. Pasa-

dena City Board of Education, 311 F. Supp. S01, 505

(C.D. Cal. 1970). Because class-wide relief had been

granted, there was no occasion in either case for the

question of class “certifibality” to be raised on appeal by

the plaintiffs. If the order granting class-wide relief had

become final, the plaintiffs would have obtained all the

relief they sought. This Court did not suggest that its

decision in Jacobs or Spangler resulted from the plaintiffs’

failure to challenge the propriety of the class certifica-

tion on appeal from judgments in which they had ob-

tained class-wide relief. To the contrary, the Court made

clear that those cases were moot because “only a ‘prop-

erly certified’ class * * * may succeed to the adversary

position of a named representative whose claim [became]

moot.”5 Aremens v. Bartley, supra, 431 U.S. at 133,

quoting Board of School Commissioners v. Jacobs, supra.

‘Respondent claims (Resp. Br. 21) that this Court's decision in

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977), sup-

ports his contention that an individual whose claim is moot has

standing to seek review of an adverse class action determination.

But as we noted in our opening brief (Br. 37-39), the Court did not

address any question of mootness in McDonald. Instead, the Court

concluded that, on the facts of that case, a settlement that merely

implemented a prior judgment on the merits did not preclude the

plaintiff from taking an appeal to challenge an adverse class action

determination. 432 U.S. at 393 n.14. The Court’s conclusion in

Mc Donald that the settlement did not foreclose appeal of collateral

issues that would in fact amplify her recovery (see Share v. Air

Properties G. Inc., 538 F. 2d 279, 283 (9th Cir. 1976)) wes no doubt

aided by the fact that United Airlines conceded that the plaintiff

had standing to take the appeal. 432 U.S. at 393. The question

whether a prevailing plaintiff has obtained all the relief requested

and thus lacks standing to appeal (see 9 Muvre’s Federal Practice

para. 203.06, at 716-717 (2d ed. 1975)) is plainly a different inquiry

from that presented here —a plaintiff whose claim becomes moot ts

not entitled to any relief in the federal courts because his claim

does not present a case or controversy.

c. Because class certification was denied by the district

court and respondent's individual claims have expired,

this case is moot. Respondent contends (Resp. Br. 35

n.36), however, that the Court should grant the motion to

intervene that has been filed in this Court by five other

prisoners. Because this case became moot while it was

pending in the court of appeals, however, this Court lacks

jurisdiction to grant the motion to intervene. As we noted

in our opening brief (Br. 42-43), “intervention may not be

allowed to give life to a law suit which does not actually

exist * * * [or] breathe new life into an action which [is]

no longer justiciable.” Becton v. Greene County Board of

Education, 32 F.R.D. 220, 223 (E.D.N.C. 1963).

The cases on which respondent relies (Resp. Br. 35 n.

36) support our contention. For example, in fuller v.

Volk, 351 F. 2d 323 (3d Cir. 1965), the court observed

that “[ijt is well settled that since intervention con-

templates an existing suit in a court of competent

jurisdiction and because intervention is ancillary to the

main cause of action, intervention will not be permitted to

breathe life into a ‘nonexistent’ law suit.” /d. at 328.

Accord, Miller & Miller Auctioneers v. G.W. Murphy

Industries, Inc., 472 F. 2d 893, 895-896 (10th Cir. 1973).°

Because this case is moot, the motion to intervene must be

denied and the case dismissed. Duke Power Co. v.

Greenwood County, 299 U.S. 259, 267 (1936).

2. Respondent voices numerous criticisms over the

manner in which the Commission's parole release

guidelines were formulated (Resp. Br. 18-19, 50-82). But

the question in this case is not whether these guidelines

are the best possible means for ensuring fair and equitable

‘In Fuller, the court held that a motion to intervene may, in the

discretion of the district court, be treated as a separate civil action

adjudicated independently from the main law suit. In this case too,

the action of the intervenors could be instituted by the filing of a

separate claim in federal district court. But the filing of that action

would not revive the controversy in this case, which became moot

upon respondent's release from prison.

parole decisions. The question is, rather, whether the

exercise of parole discretion pursuant to the guidelines is

unlawful under the Parole Commission and Reorganiza-

tion Act or the Constitution.

a. Respondent's contention (Resp. Br. 102-105) that the

Commission’s use of parole guidelines improperly

interferes with the judicial sentencing function was

rejected by this Court in United States vy. Addonizio, No.

78-156 (June 4, 1979), slip op. 10-11:

The decision as to when a _ lawfully sentenced

defendant shall actually be released has _ been

committed by Congress, with certain limitations, to

the discretion of the Parole Commission. Whether

wisely or not, Congress has decided that the

Commission is in the best position to determine when

release is appropriate, and in doing so, to moderate

the disparities in the sentencing practices of in-

dividual judges.* * *

** *(T}he judge has no entorcible expectations

with respect to the actual release of a sentenced

defendant short of his statutory term. The judge

may well have expectations as to when release is

likely. But the actual decision is not his to make,

either at the time of sentencing or later if his

expectations are not met.

As we noted in our opening briet (Br. 72-74), the

authority to grant parole is vested in the Parole

Commission exclusively, and the exercise of this authority

does not usurp the judicial power. See United States v.

Grayson, 438 U.S. 41, 47 (1978).

b. Respondent repeatedly contends (Resp. Br. 57. 81,

$3, 98, 100-101) that the parole guidelines fail to give any

10

consideration to the prisoner's behavior during confine-

ment, as 18 U.S.C. 4206(a) requires.’ This is incorrect.

The application of the guidelines to each prisoner is

expressly “predicated upon good institutional conduct

and program. performance” (Pet. App. 72a n.l). A

prisoner's institutional record is considered at several

points in the parole decision-making process. At each

prisoner's initial parole hearing, the Commission es-

tablishes a “presumptive release date” that, depending on

the particular facts of the prisoner's offense and personal

history (28 C.F.R. 2.12(b); see id. at Section 2.20(c), (d),

(c)), will be either before, during, or after the guidelines

customary release range.* Each prisoner's presumptive

release date is expressly contingent upon “good in-

stitutional adjustment and program progress.” /d. at

Section 2.20(b). Before a prisoner may be released at his

presumptive release date, the Commission must make “an

affirmative finding [in a pre-release review] * * * that the

prisoner has a continued record of good conduct and a

suitable release plan * * *.” /d. at Section 2.12(d). The

Commission's rules provide that “the prisoner's overall

institutional record [is to be considered] in determining

whether the conditions of a presumptive parole date have

been satisfied.” /bid. If good institutional performance is

not maintained, the prisoner's release date may be

The statute conditions parole release upon a determination by the

Commission that the prisoner “has substantially observed the rules of

the institution or institutions to which he has been confined * * *." 18

U.S.C. 4206(a).

‘The current regulations of the Parole Commission are shown at 44

Fed. Reg. 3404-3410, 26540-26552 (1979). Citations to the regulations

in this brief are to the current regulations.

deferred. /d. at Section 2.14(a)(2)(in), (b)( 2,0). If

exceptional institutional performance is achieved, the

prisoner's release date may be advanced. /d. at Section

2.14(a)(2)(ii), (b)(2)(ii).'"" Institutional performance thus

remains an important factor in the Commission's parole

release decisions.

c. Respondent argues (Resp. Br. 76-77, 99-100) that the

parole guidelines are applied “mechanical[lyJ” and that

the Commission’s parole decisions are not made “upon

consideration of the nature and circumstances of the

offense and the history and characteristics of the

prisoner.” 18 U.S.C. 4206(a). As we demonstrated in our

opening brief (Br. 58-60), however, the parole guidelines

are not inflexible. Mitigating or aggravating cir-

cumstances relating to a particular offense, as well as

institutional performance, may justify a decision outside

°A prisoner whose personal history and offense are such that he

would ordinarily be released within the guideline range may be

removed from guideline consideration because of poor institutional

performance. In emphasizing that “the Parole Commission [should]

reach a judgment on the institutional behavior of each prospective

parolee * * ** (S. Conf. Rep. No. 94-648, 94th Cong., 2d Sess. 25

(1976)), Congress observed that an “understanding by the prisoner of

the importance of his institutional behavior is crucial to. the

maintenance of safe and orderly prisons.” /hid.

In the Parole Commission's Guidelines Application Manual (Dec.

1, 1978), the Commission instructed its hearing officers that

“exceptional institutional program achievement” (id. at 4.17) is a

basis for advancing a prisoner's projected or actual release date. The

Commission's statistics reflect that institutional performance is the

most frequently cited reason for going below the guidelines and the

second most frequently cited reason for going above the guidelines. P.

Hoffman and L. DeGostin, Parole Decision-Making: Structuring

Discretion, 38 Fed. Probation 7, 10 (December 1974).

12

the guidelines’ ranges.'' 28 C.F.R. 2.20(c), (d), (e). The

Commission has reserved discretion to depart from the

guidelines whenever it concludes that the circumstances so

warrant. /d. at Section 2.20(c). Moreover, the Commis-

sion has generally retained authority to revise or modify

the guidelines when appropriate. /d. at Section 2.20(g).

Individual case consideration is an essential component

of the federal parole system because the Commission

must, in each case, scrutinize the particular circumstances

of the prisoner and his offense to determine how, if at all,

the guidelines are to be applied to him. If the guidelines

are found applicable to the prisoner, the Commission

must then establish a precise release date within the broad

range of customary release dates (e.g., 26-36 months)

indicated by the guidelines. If the guidelines are found

inapplicable, the Commission must determine what

release date, if any, is appropriate on the basis of the

particular facts of the prisoner's case. The extensive

nature of these individual parole inquiries is illustrated by

the fact that, in 1978, approximately 11% of the 13,957

individual decisions to release prisoners on parole

deferred the date of release beyond the guideline range.

During this same period, approximately 10% of the

Commission’s decisions granted release before the

guideline range. Report of the United States Parole

Commission 15, 19 (1978).

''Factors suggested by Congress as justifying a parole release

determination above the guidelines were “whether or not the prisoner

was involved in an offense with an unusual degree of sophistication

or planning, or has a lengthy [prison] record, or was part of a large

scale consipracy or continuing criminal enterprise.” On the other

hand, a decision below the guidelines might be justified by such

factors as “a prisoner's adverse family or health situation.” S. Conf.

Rep. No. 94-648, supra, at 27; H.R. Conf. Rep. No. 94-838, 94th

Cong., 2d Sess. 27 (1976).

13

d. Respondent argues (Resp. Br. 93-94) that Congress

intended to require the Commission to consider sentence

length in its discretionary parole decisions. Although the

statute by its terms imposes no such requirement,

respondent contends that the Conference Report indicates

that sentence length should be considered. In particular,

respondent relies on the fact that the Report states that

the Commission’s release decisions will have “the practical

effect of balancing differences in-Senteneing policies and

practices between judges and courts.” S. Cont. Rep. No.

94-648, 94th Cong., 2d Sess. 19 (1976).!°

'-Respondent contends (Resp. Br. 101 n.102) that the parole

guidelines may not be applied to prisoners sentenced to immediate

parole eligibility under 18 U.S.C. 4205(b)(2). But in enacting 18

U.S.C. 4206(a), Congress made clear that the Commission is to apply

a uniform set of parole release criteria to all federal prisoners,

without distinguishing between prisoners sentenced under different

parole eligibility schemes.j}As the Conference Committee explained,

the standards embodied in Section 4206(a) are to be applied by the

Commission “in making parole release determinations for federal

prisoners who are eligible for parole.” S. Cont. Rep. No. 94-648, 94th

Cong., 2d Sess. 25 (1976). Moreover, both the House and Senate

versions of the legislation contained a single set of standards for

determining whether or not a prisoner should be released on parole.

See S. Rep. No. 94-369, 94th Cong.. Ist Sess. 23 (1975); H.R. Rep.

No. 94-184, 94th Cong., Ist Sess. 5-6 (1975). Indeed, the Senate

Report specifically observed that “the standards and criteria are made

the same for all federal prisoners without regard to which of the three

main sentencing alternatives is utilized by the court.” S. Rep. No. 94-

369. supra, at 18. There is thus no support. in either the language or

history of the statute, for respondent's contention that Congress

intended different standards to be applied to adult prisoners

sentenced under the different statutory sentencing options. See /zsak

v. Sigler, No. 79-2507 (9th Cir. Aug. 28, 1979); Shahid v. Crawford.

599 F. 2d 666 (Sth Cir. 1979).

lr a OEE

14

For the reasons discussed on pages 60 to 72 of our

opening brief, respondent's interpretation of the legislative

history is incorrect. We note here only that the statement

in the Conference Report, on which respondent relies,

accurately describes the practical effect of the parole

guideline system. The guidelines do not eliminate a//

sentencing disparity. By providing for “fairer and more

equitable [parole] decision-making without removing

individual case consideration” (28 C.F.R. 2.20(a)), the

guidelines do not treat federal prisoners as fungible. The

parole guidelines “moderate the disparities in the

sentencing practices of individual judges” (United States

v. Addonizio, supra, slip op. 10); they do not require all

federal prisoners to serve identical sentences.

For the reasons stated above and in our opening brief,

the judgment of the court of appeais should be disposed

of as stated on page 90 of our opening brief.

Respectfully submitted.

WapbDE H. McCrek, JR.

Solicitor General

SEPTEMBER 1979

DOJ-1979-09