Petition — Geraghty v. United States Parole Commission

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JOHN M. GERAGHTY, individually and on

behalf of a class, Petitioners.

UNITED STATES PAROLE COMMISSION and

ATTORNEY GENERAL OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Kenneth N. Flaxman

55 East Monroe Street

Suite 4005

Chicago, Illinois 60603

(312) 236-8558

Attorney for Petitioners

1. Are the policies implemented in the

federal “guidelines for parole release de-

cisionmaking,” 28 C.F.R. §2.20, i.e.,

-- that the actual length of a prison-

er's sentence should not be weighed

in the parole release decision, and

-- that only a minor role is to be

afforded to rehabilitation,

contrary to the Parole Commission and Re-

Organization Act of 1976, Pub.L. 94-233?

2. Assuming that the parole guidelines

are consistent with the PCRA, may Con-

gress, consistent with Article III of the

Constitution of the United States, dele-

gate to an administrative agency the power

to resentence convicted felons, and, if

so, does the PCRA contain sufficient stan-

dards for such a delegation?

Questions Presented... cccccccccer

GCEINLIONS BElOW. .ccccccccscccccceces

JUEISGICCION. .cccccccccccccecssecse

Statutes and Regulations Involved.

| | rrrrrryr rT TrrrrrerrrTeT ree

Reasons for Granting the Writ.....

2 (. jG}. 6c ens neeseeseeeesece

TABLE OF AUTHORITIES

Parole Commission and

Reorganization Act of 1976,

Pub.L. 94-233 (1976).......4..

Bread Political Action Committee

v. Federal Election Committee,

Bee GeGese 2250 (I9EZ)wccccccose

Cole v. Young, 351 U.S. 536 (1956)

Deepsouth Packing Co. v. Laitram

Corp., 406 U.S. 518 (1972)....

Ernst & Ernst v. Hochfelder,

i Se’ Eel oy, ) ee

Garcia v. Neagle, 660 F.2d 983

(SER CLE. LHBL) eo cvccccccccsece

Geraghty v. United States

Parole Commission,

5979 F.2d 238 (3d Cir. 1976)...

Hill v. United States,

eats re CLOSO) se ccccccescs

passim

Industrial Union v. American

Petroleum Inst®tute,

448 U.S. 607 (198l)eccccccccccces »- (14

Priore v. Nelson, 626 F.2d 21l

cae Gals Beee he okt oe nee bees bt ebs a

Bee Vs BiGes. 4356 Vee 263 (i9TBlcccoeve da

United States v. Addonizio,

642 U.S. 278 C29SGd csccsccss Se Be 35

United States v. Murray,

275 0.8. 347 Powe Takes 6be6en hae e662 10

United States Parole Commission

v. Geraghty, 445 U.S. 388 (1980)... 4

Young v. United States Parole

Commission, 682 F.2d 1105

(Sth Cit. 19S2Z)cccccccccccccccces eo 10

Parole Commission and

Reorganization Act of 1976,

Pub.L. 94-233 (1976) eee eeeee passim

28 urea O26 asec eseeessepecsooes passim

S.Rep. 95-605, 95th Cong.,

1st SesS. (1L97TE)cccccececcecsceccsce: LZ

Cosgrove, Wilkins, Wallerstein

& Rauh, Classification for

Parole Decision Policy (1978)..... 13

IN THE SUPREM

JOHN M. GERAGHTY, individually and on

behalf of a class, Petitioners,

UNITED STATES PAROLE COMMISSION and

ATTORNEY GENERAL OF THE UNITED STATES

PETITION FCR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners respectfully pray that a

writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Third Circuit entered in

this proceeding on October 6, 1983.

OPINIONS BELOW

The opinion of the court of appeals

(App. Al-A30) and the dissenting opinion

from the denial of rehearing en banc (App.

a2e

C2-C3) are reported at 719 F.2d 1199. The

Opinion of the district court (Ap Bl-

B69) is reported at 552 F.Supp. 276.

JURISDICTION

The jurisdiction of this Court is in-

voked under 28 U.S.C. §1254(a). The judg-

ment of the court of appeals was entered

on October 6, 1983 (App. Dl); a timely pe-

tition for rehearing was denied on October

STATUTES AND REGULATIONS INVOLVED

This case involves 18 U.S.C. §§4203(a),

4205, 4206(a), 4207, and 28 C.F.R. §2.20,

the pertinent portions of which are repro-

duced in Appendix E.

STATEMENT

-[-

At issue in this case is whether the

policies implemented in the federal parole

guidelines, 28 C.F.R. §2.20, were intended

by Congress when it enacted the Parole

o3~

Commission and

t--

O*V

Pub.L. 94-233, and, if sce, whether the

Statute 1s constitutional.

When this case was first before this

Court, the Commission conceded that the

initial decision of the court of appeals

(579 F.2d 238) “effectively determines the

issue of the validity of the Guidelines.”

(United States Parole Commission C4

Geraghty, No. 78-572, O.T. 1977, Pet.Br.

23.)

In its first decision in this case, the

Court "“defer[red] decision on the merits

» « e« until after it is determined affir-

matively that a class properly can be cer-

ei tied.* United States Parole Commission

v. Geraghty, 445 U.S. 388, 408 (1980).

On remand, the district court ordered

that the case proceed as a class action

and, following a trial, upheld the legal-

ity of the guidelines. (App. B1-B69.)

o4o

The court of appeals affirmed (App. Al-

A30), concluding that the Court's decision

in United States v. Addonizio, 442 U.S.

178 (1979) had overruled its initial deci-

sion in this case. (App. A20-A23.) Rehear-

ing was denied over the dissent of Judge

Adams, the author of the Third Circuit's

first decision in this case. (App. C2-C3.)

-II-

In 1973, the federal parole board

adopted explicit parole release criteria

-- the parole "guidelines" -- for adult

[1] 4 new parole statute (the

prisoners.

PCRA) was enacted in 1976; the then exist-

ing guidelines were adopted under the PCRA

by the newly created United States Parole

Commission.

{1] The guidelines consist of two scales which

determine the range of "customary total time” an

prisoner must ordinarily serve before being grant-

ed parole. Parole is granted in less than one

case out of ten before a prisoner has served the

"customary total time."

-5<

Under the guidelines, the actual sentence

udge is not

relevant to whether and when a prisoner

will be released on parole. (App. 35) [2]

In addition, as the district court found,

rehabilitation has “little impact on the

parole decision." (App. B47.)

The parole release decision under the

Quidelines consists of determining a

Prisoner's “offense severity rating"! 3]

(2] The length and type of sentence, of course,

determines whether and when the prisoner will be-

come eligible for release on parole.

(3] The "offense severity scale" of the guide-

lines (App. ES5-E18) contains eight classifications

of offenses, ranging from "Category 1" (lowest se-

verity) to "Category 8" (highest severity." The

district court found that offenses are categorized

in this scheme "without regard to the maximum

minimum penalties set by Congress." (App. B35.)

For each “offense severity category," the

“offense severity scale" lists four ranges of

“customary total time” which must ordinarily be

served before parole will be granted. (App. £18.)

The district court found that “[t]he customary

total time has no relationship to the senience

actually imposed on the inmate." (App. 828.)

=t<

—_— —— —— oe oes a ee ee -- ——_ <=

w [4]

and "salient factor score, and consult-

ing the guideline table to determine the

"customary length of imprisonment.” A de-

cision to grant parole before the prisoner

has served this "customary length of im-

prisonment" is made in less than ten per-

cent of all cases, including those cases

in which the actual sentence imposed is

less than the “customary length of impris-

onment" of the guidelines.

-IV-

The guidelines are based upon a study

of parole release decisionmaking in Youth

[4] The “salient factor scale" (App. E19) deter-

mines which of the four ranges of “customary total

time” will be applied to a particular prisoner. A

“very good" salient salient factor score corres-

ponds to the lowest range of customary total time"

for a particular offense severity rating.

A prisoner’s “salient factor score” cannot

be changed during incarceration, and is based upon

the number of prior convictions, number of prior

commitments, age at current offense, the length of

recent commitment free period, history as a proba-

tion or parole violator, and whether or not the

prisoner has had an opiate dependence.

Correction Act cases (Apso. B23-B30, cases

in which there is not a judicially set

lencth of sentence. 18 U.S.C. §5017(a).

The Youth Act study, which was predi-

cated on the belief that parole release is

"a deferred sentencing decision,” revealed

that the primary factor in parole release

decisions was a judgment’ of the severity

of the prisoner's offense. (App. B28=-29.)

The parole board, without undertaking

any similar study of actual decisionmaking

in adult cases, decided to employ its YCA

policy as a model for adult cases. (App.

B29.) The result of this policy decision

is the present type of guidelines which do

not weigh the actual length of sentence.

-V-

Throughout this litigation, plaintiff

has contended inter alia that Congress did

not authorize the Parole Commission to re-

fuse to consider the actual length of a

prisoner's sentence and that any such

authorization would encroach upon the

independent judiciary guaranteed by Arti-

cle III.

In rejecting this argument, the court

of appeals concluded that this Court's de-

Cision in United States v. Addonizio, 442

U.S. 178 (1978) had upheld the Parole Com-

mission's power to disregard the actual

length of a prisoner's sentence in making

parole release decisions. (App. A20=-23.)

REASONS FOR GRANTING THE WRIT

The legality of the federal parole

guidelines, 28 C.F.R. §2.20, is an impor-

tant question which has not been decided

by this Court. Cortiorari should be

granted to resolve the doubts about the

legality of the guidelines expressed in

the Third Circuit's first opinion in this

case, 579 F.2d 238.

-9-

l. The lower federal courts which have

considered the legality of the guidelines

are in agreement that the focus of the

parole release decision under the guide-

lines is vastly different from the tra-

ditional concern with the “conduct of pen-

itentiary convicts during their incarcera-

tion." United States v. Murray, 275 U.S.

347, 359 (1927). [9]

In lieu of the "predictive judgment” as

to when "the inmate is prepared to adjust

to parole release," Greenholtz v. Inmates,

442 U.S. 1, 8, 15 (1979), the guidelines

substitute the Parole Commission's inde-

pendent determination as to the "customary

length of imprisonment" which a prisoner

should serve. The actual sentence imposed

is irrelevant to the “customary length of

(5) See, e-g-, Priore v. Nelson, 626 F.2d 211,

216-17 (2d Cir. 1980); Garcia v. Neagle, 660 F.2d

983, 991 (4th Cir. 1981); Young v. United States

Parole Commission, 682 F.2d 1105 (5th Cir. 1982).

-10-

imprisonment,” which may exceed the actual

sentence being served, in which case pa-

role will ordinarily be denied.

2. In upholding the guidelines in this

case, the court of appeals concluded that

the policies implemented in guidelines,

while not specifically authorized in the

Parole Commission and Reorganization Act

of 1976, Pub.L. 94-233, are not plainly

inconsistent with the statute. (App. Al3-

Als.)

A different standard -- that of "sub-

Stantial support in the legislative his-

tory," Ernst & Ernst v. Hochfelder, 425

U.S. 185, 211 (1975) -=- has been applied

by this Court in other contexts. See,

e.g., Deepsouth Packing Co. v. Laitram

Corp., 406 U.S. 518, 531 (1972) ("clear

and certain signal from Congress” required

to expand patent rights); Cole v. Younc,

351 U.S. 536, 546-47 (1956) (Summary dis-

elle

missal of governmental employees); SEC v.

Sloan, 436 U.S. 103, 112 (1978) ("clear

mandate from Congress" to authorize suc-

cessive summary suspensions of trading in

securities); Bread Political Action Com-

mittee v. Federal Election Committee, 102

3. Neither the express language of the

PCRA nor its legislative history expressly

authorize the Parole Commission to make

parole release decisions without regard to

the actual sentence imposed. That Con-

gress was unaware of any such provision in

the PCRA is shown by its subsequent obser-

vation that

A federal judge who today believes that

an offender should serve four years in

prison may impose a sentence in the

vicinity of ten years knowing that the

offender is eligible for parole release

after one third of the sentence.

S.Rep. 95-605, 95th Cong., lst Sess.

1169 (1976).

4. That the PCRA requires parole re-

lease decisions to be made pursuant to

o) 20

guidelines, 18 U.S.C. §4206, does not man-

date the type of guidelines used by the

Parole Commission. In contrast to the

"matrix model” used by the Commission, a

"sequential model" has been adopted by

parole board in jurisdictions which recog-

nized that “it was not their responsibili-

ty, in effect, to resentence the inmate.”

Gottfredson, Cosgrove, Wilkins, Waller-

stein & Rauh, Classification for Parole

Decision Policy 38 (1978).

The “sequential model” of parole guide-

lines has been employed in jurisdictions

“where the inmate must serve a fixed pro-

portion of his/her maximum sentence."

Gottfredson, Cosgrove, Wilkins, Waller-

stein & Rauh, supra, at 29. Those juris-

dictions which, like the Parole Commis-

sion, have opted for a “matrix model” have

done so on the view that “the parole de-

cision is a deferred sentencing decision.”

Id. at 28.

-13-

Se Neither the express statutory lan-

guace of the PCRA nor its legislative his-

tory provide any support for the view that

Congress intended the Parole Commission to

make deferred sentencing decisions, as it

does uncer its present guidelines. Any

such Congressional intent would raise sub-

stantial questions about the standardless

delegation, see Industrial Union v. Ameri-

Can Petroleum Institute, 448 U.S. 607,

685-86 (Rehnquist, J., concurring), of

Article III sentencing power to an admin-

istrative agency. Cf. Hill v. United

States, 298 U.S. 460, 464 (1936) (senten-

cing "is part of the judicial function")

The court of appeals concluded that

this Court had resolved the Article III

question in its decision in United States

v. Addonizio, 442 U.S. 178 (1978) (App.

21-23.) But as Judge Adams stated in his

Opinion dissenting from the denial of re-

o14<

———_— —_———

hearing en banc, Addonizio expressly re-

served decision on the legality of the

parole guidelines. (App. C2-C3.)

The question of whether the PCRA law-

fully transformed parole into a deferred

sentencing decision, to be made without

regard to rehabilitative factors, is an

important question which should be

resolved by this Court.

CONCLUSION

It is therefore respectfully submitted

that certiorari be granted.

Kenneth N. Flaxman

55 East Monroe Street

Chicago, Illinois 60603

(312) 236-8558

Attorney for Petitioner

ol1$<

INDEX

Opinion, Court of Appeals

(October 6, 1983) .ccccccccccvescceece Al

Opinion, District Court

(October 29, 1982) .cccccccccccces eee Bl

Order, Court of Appeals,

denying rehearing and dissenting

Opinion (October 28, 1983) ..cseeeees Ci

Judgment Order, Court of Appeals

(October 6, 1983). cccevveeeevvveees Dl

Statutes and Regulations Involved.... El

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-3593

GERAGHTY, JOHN M.., individually and on

behalf of a class

ADDITIONAL PLAINTIFFS:

VILLANTI, FRANK

FORD, NICOLA

US.

UNITED STATES PAROLE COMMISSION and .

ATTORNEY GENERAL OF UNITED STATES and

SUPERINTENDENT, FEDERAL PRISON CAMP

Montgomery, Pa.

John M. Geraghty,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 76-1467)

Argued

August 11, 1983

Before: ALDISERT and WEIS. Circuit Judges,

and RE. Chief Judge. °

(Filed October 6, 1983)

*Honorabie Edward D Re. Chief Judge of the United States Court of

International Trade. sitting by designation

-App. Al-

ee ee

OF COUNSEL:

Joseph A. Barry

General Counsel

Kenneth N. Flaxman, Esq. (ARGUED)

55 East Monroe Street

Suite 4005

Chicago, Illinois 60603

COUNSEL FOR APPELLANT

David Dart Queen

United States Attorney

Frederick E. Martin

Assistant U.S. Attorney

U.S. Post Office Building

Lewisburg, Pennsylvania 17837

Patrick J. Glynn (ARGUED)

Attorney

U.S. Parole Commission

5550 Friendship Boulevard

Chevy Chase, Maryland 20815

U.S. Parole Commission

Michael A. Stover

Attorney

U.S. Parole Commission

COUNSEL FOR APPELLEES

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal presents three questions: whether the

district court properly made certain class certification

decisions; whether the federal parole guidelines violate

the Parole Commission and Reorganization Act of 1976

-App. A2-

(PCRA): and if not, whether construing the PCRA to au-

thorize the guidelines renders the statute unconstitu-

tional. The district court, following a remand from the

United States Supreme Court, certified a plaintiff class

consisting of federai prisoners in the Middle District of

Pennsylvania, and, after a bench trial, held both that the

guidelines were valid under the PCRA and that inter-

preting the PCRA to authorize the guidelines did not of-

fend the Constitution. Geraghty, for himself and the

class, appeals both the district cofirt’s class action de-

termination and its decision on the merits. We affirm.

On September 15, 1976, plaintiff John M.

Geraghty, a federal prisoner, initiated this class action

in the United States District Court for the District of

Columbia seeking declaratory and injunctive relief’

after his reanests for release on parole had been twice

denied.* He challenged the legality of the federal parole

1. Geraghty was serving a30-month sentence for conspiracy to

commit extortion and making false material declarations to a grand

jury. When he was originally sentenced, he was given concurrent

prison terms of four years on the conspiracy count and one year on

the false declarations count. The sentencing court later commuted .

his sentence to 30 months pursuant to Rule 35, F.R.Crim.P. United

States v. Braasch, No. 72-979 (N.D. Ill. Oct. 9, 1975), appeal dis-

missed and petition for mandamus denied, 542 F.2d 442 (7th Cir.

1976). In reducing his sentence, the court reasoned that the applica-

tion of the parole guidelines would cause Geraghty to be imprisoned

substantially longer than it originally intended.

2. After four months tn custody. Geraghty applied for release

on parole. His first application was denied with the following expla-

nation:

Your offense has been rated as very high severity. You have a

{parole prognosis| score of 11. You have been in custody for a

total of 4 months. Guidelines established by the Board for adult

cases which consider the above factors indicate a range of 26-36

-App. A3-

guidelines, both on their face and as applied. and the

constitutionality of the PCRA. The district court con-

strued the case as one sounding in habeas corpus and

transferred it to the Middle District of Pennsylvania. the

situs of Geraghty’s incarceration. The transferee dis-

trict court agreed that it was a habeas corpus proceed-

ing, denied class certification, and granted summary

judgment in favor of the defendants both as to the le-

gality of the parole guidelines and the constitutionality

of the statute under which they had been promulgated.

Geraghty v. United States Parole Commission, 429 F.

Supp. 737 (M.D. Pa. 1977). Geraghty appealed. but be-

fore disposition, his sentence expired and he was re-

leased.

We subsequently reversed and remanded. Geraghty

uv. United States Parole Commission, 579 F.2d 238 (3d

Cir. 1978), holding: (1) the case should have been con-

strued as an action for declaratory judgment rather

than habeas corpus: (2) Geraghty’s release did not ren-

der the appeal moot; and (3) the district court erred in

failing to consider sua sponte the possibility of creating

subclasses when it denied class certification. Then, to

avoid “improvidently dissipat{ing] judicial effort.” id. at

254, we went on to address the merits of Geraghtys

substantive claims for the limited purpose of determin-

ing whether a trial should be had. We concluded that it

should, stating:

months to be served before release for cases with good institu-

tional program performance and adjustment. After review of all

relevant factors and information presented. it is found that a

decision at this consideration outside the guidelines does not

appear warranted.

Geraghty reapplied for parole several months later. and again. his

application was denied for the same reason. Thus. as the guidelines

were applied. Geraghty was required to stay in prison. unparoled.

until the expiration of his sentence, minus good-time credits.

If Geraghty’s recapitulation of the function and

genesis of the guidelines is supported by the evi-

dence, there are important divergents between the

Parole Commission's actions and the intent of Con-

gress in enacting the statutory mandate.

Id. at 259.

The Commission petitioned the Supreme Court for

certiorari, which was granted. United States Parole

Commission v. Geraghty, 440 U.S. 945 (1979). The

Court then vacated our decision and remanded the case

for further proceedings. United States Parole Commis-

sion v. Geraghty, 445 U.S. 388 (1980). It agreed that

Geraghty’s release from custody had not mooted the

case, but rejected our suggestion that the district court

should have considered sua sponte the possibility of

creating subclasses when it denied class certification. It

ruled that the burden of constructing subclasses should

be on Geraghty rather than the district court. Finally,

the Court declined to address the merits, stating:

although the Court of Appeals commented upon the

merits for the sole purpose of avoiding waste of judi-

cial resources, it did not reach a final conclusion on

the validity of the guidelines. Rather, it held only

that summary judgment was improper and re-

manded for further factual development. Given the

interlocutory posture of the case before us. we must

defer decision on the merits of respondent's case

until after it is determined affirmatively that a class

properly can be certified.

Id. at 408.

Onremand, rather than certify the nationwide class

suggested by Geraghty. the district court allowed the

case to proceed as a class action consisting only of fed-

eral prisoners confined in the Middle District of

Pennsylvania who are, or will become. eligible for parole

release under 18 U.S.C. § 4205(a)* and who have been,

or will be, denied parole and continued to the expiration

of their sentences. It limited the case to a consideration

of two issues advanced by Geraghty: the legality of the

parole guidelines under the PCRA and the facial con-

stitutionality of the statute. Geraghty v. United States

Parole Commission, No. 76-1467 (M.D. Pa. Dec. 10,

1980), reprinted in app. at 27. In so doing, it refused to

consider whether the Commission's failure to distin-

guish between 18 U.S.C. §§ 4205(a) and 4205(b)* of-

fenses was permissible, whether the parole guidelines

were unlawful as applied, and whether applying the

parole guidelines retroactively constitutes a violation of

the ex post facto clause of the Constitution (an issue

since addressed by this court in United States ex rel.

Forman v. McCall, No. 82-3021 (3d Cir. filed June 10,

1983)). After a bench trial, the district court again up-

held both the legality of the parole guidelines under the

3. Section 4205(a) provides:

(a) Whenever confined and serving a definite term or terms

of more than one year, a prisoner shall be eligible for release on

parole after serving one-third of such term or terms or after serv-

ing ten years of a life sentence or of a sentence of over thirty

years, except to the extent otherwise provided by law.

4. Section 4205(b) provides:

(b) Upon entering a judgment of conviction, the court hav-

ing jurisdiction to impose sentence. when in its opinion the

ends of justice and best interest of the public require that the

defendant be sentenced to imprisonment for a term exceeding

one year, may (1 ) designate in the sentence of imprisonment im-

posed a minimum term at the expiration of which the prisoner

shall become eligible for parole. which term may be less than but

shall not be more than one-third of the maximum sentence im-

posed by the court. or (2) the court may fix the maximum sen-

tence of imprisonment to be served in which event the court may

specify that the prisoner may be released on parole at such time

as the Commission may determine.

PCRA and the constitutionality of the statute. Geraghty

v. United States Parole Commission, 552 F. Supp. 276

(M.D. Pa. 1982). Geraghty again appeals, contending

that both the district court's class action determination

and its decision on the merits were erroneous.

II.

Geraghty attacks the district court's class action de-

terminations on three grounds, arguing that the court

erred in: (1) certifying a class limited to prisoners con-

fined in the Middle District of Pennsylvania; (2) refusing

to certify the class on the question of the propriety of

applying the same guidelines both to prisoners sen-

tenced under 18 U.S.C. § 4205(a) and to those sen-

tenced under 18 U.S.C. § 4205(b); and (3) refusing to

certify the class on the question of the legality of parole

guidelines as applied. Going to the merits, appellant's

primary contention is that the parole guidelines offend

the PCRA because they do not specifically require the

Commission to consider either the prisoner's rehabili-

tation and institutional behavior or the length of his

sentence. Presuming the guidelines are adjudged to be

valid, however, he argues that such a construction of

the PCRA renders it unconstitutional as an impermis-

sible infringement of judicial and legislative functions.

Although we will consider these arguments seriatim, a

short description of the PCRA and the guidelines will

place the contentions in proper perspective.

III.

In 1976, Congress enacted the Parole Commission

and Reorganization Act, 18 U.S.C. §§ 4201-4218. The

statute created the United States Parole Commission as

successor to the United States Board of Parole, 18

U.S.C. § 4292, and empowered it to make parole release

-App. A7-

decisions for eligible federal prisoners, 18 U.S.C.

§ 4203(b). The PCRA also made it the Commission's re-

sponsibility to promulgate guidelines to govern the

exercise of that power. 18 U.S.C. § 4203(a)(1).

In making a parole release decision under the stat-

ute, the Commission first must find that the prisoner is

eligible for release. Eligibility is controlled by the nature

of the sentence imposed by the sentencing judge. If the

sentencing judge imposes a definite term sentence, ac-

cording to 18 U.S.C. § 4205(a), the prisoner is usually

ineligible for release on parole until after he has served

one-third of his sentence. If the sentencing judge fixes a

minimum term of incarceration, 18 U.S.C. § 4205(b)(1)

governs, and the prisoner becomes eligible for parole at

the expiration of that term. But if the judge fixes a

maximum sentence to be served, he may grant the

Commission carte blanche authority to release the pris-

oner at any time under 18 U.S.C. § 4205(b)(2).

Presuming the prisoner is eligible for parole release,

the PCRA directs the Commission to determine whether

that release should be granted. Specifically, 18 U.S.C.

§ 4206(a) dictates that a prisoner is to be released pur-

suant to the Commission's guidelines, if

{he} has substantially observed the rules of the in-

stitution . .. to which he has been confined, and if

the Commission, upon consideration of the nature

and circumstances of the offense and the history

and characteristics of the prisoner, determines:

(1) that release would not depreciate the

seriousness of his offense or promote disre-

spect for the law; and

(2) that release would not jeopardize the

public welfare.

Only for good cause may the Commission depart from

the guidelines in granting or denying a prisoner release

on parole. 18 U.S.C. § 4206(c).

In making its many parole release determinations,

the Commission must consider. if available and rele-

vant:

(1) reports and recommendations which the

staff of the facility in which such prisoner is con-

fined may make;

(2) official reports of the prisoner's prior crim- -

inal record, including a report or record of earlier

probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the pris-

oner’s parole made at the time of sentencing by the

sentencing judge: and

(5) reports of physical, mental, or psychiatric

examination of the offender.

18 U.S.C. § 4207. All additional relevant information

concerning the prisoner that is reasonably available

must also be considered. Id.

“To establish a national paroling policy, promote a

more consistent exercise of discretion, and enable fairer

and more equitable decision-making without removing

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

(1981), the Commission promulgated guidelines for

making parole release determinations pursuant to 18

U.S.C. § 4203(a)(1). See Amendment to Paroling Policy

Guidelines, 47 Fed. Reg. 56, 336 (1982) (to be codified at

28 C.F.R. § 2.20). The guidelines were substantively

similar to the ones that channeled the discretion of the

Board of Parole before the enactment of the PCRA. Em-

bodied in these guidelines is a formula that enables the

Commission to compute the “customary total time” an

eligible federal prisoner must serve before being re-

-App. A9-

leased on parole. To make this computation, the Com-

mission first must determine the severity of the pris-

oner's offense—a determination that is made without

regard to the maximum-minimum offense penalties set

by Congress or sentence length. The Commission then

must assess the likelihood that the prisoner will succeed

on parole—an assessment that is not based on a pris-

oner’s rehabilitative progress, but on the number of

prior convictions, number of prior commitments, age at

current offense, length of recent commitment free

period, current probation or parole status, and history

of heroin or opiate dependence. Although prisoners are

ordinarily released or detained in accordance with these

guidelines, “[wlJhere the circumstances warrant, deci-

sions outside of the guidelines (either above or below)

may be rendered.” 28 C.F.R. § 2.20(c) (1981).

IV.

Reaching Geraghty’s contentions, we first must de-

cide whether the district court erred in its class action

determinations. We must uphold those determinations

absent proof of abuse of discretion. In re Fine Paper An-

titrust Litigation, 685 F.2d 810, 822 (3d Cir. 1982). We

find no abuse of discretion here.

First, the district court did not abuse its discretion

in refusing to certify a nationwide class of federal pris-

oners. The lower court based its decision to confine the

class to those imprisoned in the Middle District of

Pennsylvania on the policy of preserving inter-circuit

comity. See Bijeol v. Benson, 513 F.2d 965, 968 (7th

Cir. 1975). It is within the district court's discretion to

conclude that classwide consideration of the legality of

the parole guidelines and the constitutionality of the

PCRA might interfere with the litigation of similar is-

sues in other judicial districts. See Califano uv.

Yamasaki, 442 U.S. 682, 702 (1979).

-App. Al0-

—_—_——

Next, the district court did not abuse its discretion

in refusing to certify the class on the question of the

propriety of guidelines that allow the Commission to

treat prisoners sentenced under 18 U.S.C. § 4205(a) the

same as those sentenced under 18 U.S.C. § 4205(b).

The lower court based this decision on the “negotiated

; give-and-take” of counsel at the pre-trial conference.” It

reasoned that because the parties agreed at the confer-:

ence to abandon the proposed subclass of prisoners sen-

tenced under 18 U.S.C. § 4205(b) and because no objec-

tion was raised to certifying the subclass of prisoners

sentenced under 18 U.S.C. § 4205(a), its decision to cer-

tify only the latter subclass was proper. Having certified

5. The district court explained:

At the conference we held on July 2, 1980. counsel for Plain-

tiff and Defendants presented their arguments for and against

the proposed subclasses. Plaintiffs counsel agreed to drop Sub-

class II [prisoners sentenced under § 4205(b)(1) and (b)(2)) and

Subclass I(b) [prisoners sentenced under § 4205(a) who have

been granted a presumptive release date which requires them to

serve one-third of their sentence in prison) and Defendants’

counsel could present no opposition to a certification of Sub-

class I(a)| prisoners sentenced under § 4205(a) who have been,

or will be. denied parole and continued to the expiration of their

sentence). In the report filed on July 17, 1980, Defendants still

focused no objections on the certification of Subclass I(a). We

conclude, therefore, that Defendant has presented no opposi-

tion to Subclass I(a). In his response to Defendants report. filed

on July 25, 1980, Plaintiffs counsel suggests a new Subclass |

r for our consideration. We will base our decision on what class to

certify, however, on the negotiated give-and-take of counsel at

the conference. The elimination of Subclasses I(b) and II negates

Defendants arguments about adverse interests within the

class. The § 4205(b) application issue is therefore dropped be-

cause subclass I(a). the class we certify herein. includes no fed-

eral prisoners sentenced thereunder.

Geraghty v. United States Parole Commission. No. 76-1467. slip op.

at 4. n.4 (M.D. Pa. Dec. 10. 1980). reprinted in app. at 27

-App. All-

that limited subclass, the district court concluded that

it would be improper to allow that subclass to litigate an

issue that implicated the interests of the non-certified

subclass as well. As the parties have not provided us

with any documentation of the pre-trial negotiations to

assist us in our review of the district court's disposition

of this issue below, deference to that court's exercise of

discretion is appropriate. Moreover, in the view we take

on the substantive merits of this case, any abuse of dis-

cretion relating to the disposition of this class action de-

termination, or the one concerning certification of a

nationwide class, would be harmless.

Finally, the district court did not abuse its discre-

tion in refusing to certify the class on the question of the

legality of the parole guidelines as applied. The district

court reasoned that:

The growing number of prisoner cases in which

federal courts have specifically found that the po-

tential parolee has received individualized applica-

tion of the guidelines clearly reflects the varying is-

sues of fact that emerge in the application issue.

See, e.g., L’'nited States ex rel. Goldberg v. Warden,

622 F.2d60, 65 (3d Cir. 1980);:Priore v. Nelson, 626

F.2d 211, 216 (2d Cir. 1980). The factual questions

inherent in making a parole decision under the

guidelines involve too many individual case varia-

tions to be the proper subject of a class action.

Locicero v. Day, 518 F.2d 783, 785 (6th Cir. 1975).

Id., slip op. at 8 (footnote omitted). In addition, al-

though this class action was brought under Rule 23

(b)(2), F.R.Civ.P., rather than under Rule 23 (b)(3).

F.R.Civ.P..° thereby suggesting that individual case

6. Rule 23 provides in relevant part:

(b) An action may be maintained as a class action if the

prerequisites of subdivision (a) are satisfied, and in addition:

-App. Al2-

variation should not bar classwide treatment of the ap-

plication issue, we have previously committed to the

district court the discretion to deny certification in Rule

23 (b)(2) cases in the presence of “disparate factual cir-

cumstances." Carter v. Butz, 479 F.2d 1084, 1089 (3d

Cir.), cert. denied. 414 U.S. 1094 (1973). We will thus

defer to the discretion exercised here by the district

court. We now turm to the two substantive issues raised:

by appellant — the validity of the guidelines under the

PCRA and the constitutionality of the statute.

VI.

We first address appellant's contention that the

guidelines violate the PCRA because they do not specif-

ically require the Commission to consider (1) a pris-

oners rehabilitation and institutional performance or

(2) the length of his sentence.

In addressing appellant's institutional rehabilita-

tion argument, we look first to the language of the

statute. There is no doubt that the PCRA requires the

Commission to consider rehabilitation and institu-

tional behavior tn its parole decisionmaking process.

Specifically, the preamble to 18 U.S.C. § 4206(a) makes

satisfactory institutional conduct a prerequisite to

granting release on parole. If the Commission deter-

(2) the party opposing the class has acted or refused to act

on grounds generally applicable to the class, thereby making ap-

propriate final injunctive relief or corresponding declaratory re-

lief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact com-

mon to the members of the class predominate over any ques-

tions affecting only individual members

-App. Al3-

mines that a prisoner's conduct record is poor, it need

not inquire further; parole will be denied. In this way,

the statute sanctions the use of institutional per-

formance as a negative factor. If the Commission deter-

mines that a prisoner has shown good institutional

conduct, however, it must then go on to consider both

the nature and circumstances of the offense and the his-

tory and characteristics of the prisoner to determine

whether parole release should be granted. 18 U.S.C.

§ 4206(a). As part of this inquiry, 18 U.S.C. § 4207 di-

rects the Commission to consider, inter alia, “reports

and recommendations which the staff of the facility in

which such prisoner isconfined may make.” Reading 18

U.S.C. §§ 4206 and 4207 together, therefore, suggests

that both positive and negative institutional behavior

are part of the “history and characteristics of a prisoner”

that must be reviewed by the Commission. Thus, as we

read the statute, institutional behavior, while certainly

not the primary factor to be considered in determining

whether to grant parole, must be given some considera-

tion in the parole decisionmaking process. See Hay-

ward v. United States Parole Commission, 659 F.2d

857, 861 (8th Cir. 1981); Moore v. Nelson, 611 F.2d

434, 438 (2d Cir. 1979): Shahid v. Crawford, 599 F.2d

666, 670 (Sth Cir. 1979).

We find the guidelines to be consistent with this

stated statutory directive. First, the guidelines are

“predicated upon good institutional conduct and pro-

gram performance.” 28 C.F.R. § 2.20 (1981). To that ex-

tent, therefore, they do not eliminate rehabilitative con-

siderations. Moreover, the guidelines do not operate ina

vacuum. Merely because they are employed by the

Commission to determine a presumptive release date

for a well-behaved prisoner, without factoring in posi-

tive rehabilitative conduct into the parole prognosis de-

termination, does not mean that rehabilitative progress

or the lack thereof is ignored in the parole decisionmak-

-App. Al4-

ing process. Unusually good or bad performance may

“justify” a parole release decision earlier or later than the

guideline time indicated. 28 C.F.R. § 2.20 (c) (1981). As

the Commission stated at oral argument:

Ifa person has a bad institutional record, generally

it's going to be a record which has developed some-

time after the initial hearing, because the initial’

hearing is held at the beginning of imprisonment.

When that prisoner comes up for his second parole

hearing, what we call a Statutory Interim Hearing,

the Commission will take the original presumptive

release date and extend that to some later date

based on the seriousness and frequency of the in-

stitutional disciplinary violations. Similarly, if a

prisoner has an exceptionally good institutional

record, the Parole Commission [can] advancle] the

release date....

Transcript of Oral Argument 25-26.

Further, the Act's movement away from condition-

ing parole release on positive institutional behavior, as

reflected in the guidelines promulgated pursuant

thereto, is supported by legislative history. The Joint

Explanatory Statement of the Committee of Conference

on the PCRA makes it clear that Congress did not intend

to require the Commission to use rehabilitation or any

other particular factor in devising its guidelines:

It is the view of the Conferees that the Parole Com-

mission must make judgments as to the probability

that any offender would commit a new offense based

upon considerations which include comparisons of

the offender with other offenders who have similar

backgrounds. The use of predictive devices is at

best an inexact science, and caution should be

utilized. Such items as prior criminal records, em-

ployment history and stability of living patterns

“App. Al5S-

have demonstrated their usefulness in making de-

terminations of probability over a substantial

period of time. These are not written into the stat-

ute, however, as it is the intent of the Conferees to

encourage the newly created Parole Commission

to continue to refine both the criteria which are

used and the means for obtaining the information

used therein.

H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 26,

reprinted in 1976 U.S. Code Cong. & Ad. News 351,

358-59 (emphasis added). The Conferees pointedly

stated that “the weight assigned to individual factors (in

parole decisionmaking) is solely within the (commis-

sion's) broad discretion.” Id. at 360.

Additionally, Congress recognized that in many

cases the prisoner could do little, ifanything, to improve

his parole prospects:

The Conferees intend that this requirement for ad-

vice on future parole prospects be narrowly con-

strued. In situations in which the prisoner has been

convicted of a serious offense, there may well be

nothing that he can do to enhance his parole poten-

tial until service of some period of time has been

completed. Moreover, promises of parole should not

be used to coerce inmate participation in institu-

tional programming.

Id. at 362. We interpret this passage of the Conference

Report as an implicit acknowledgement that positive in-

stitutional behavior may have little impact on the parole

decision.

Distilled to its essence, therefore, appellant's re-

habilitation argument seems to resemble a classic

Greco-Roman argumentum ad ignoratium, to-wit, that

since the statute did not prohibit a guideline on re-

habilitation, the Com™ssion was required to provide

“App. Al6-

one. We conclude that the statute did not require sucha

guideline and, even if it did, the guidelines, taken to-

gether with the other parole regulations, sufficiently ac-

count for institutional behavior in the parole release de-

cisionmaking process for us to uphold the guidelines

under the PCRA.

Appellants also contend that the guidelines violate

the PCRA because they do not provide for consideration

of sentence length in the parole decisionmaking

process. To resolve this inquiry, we again must look to

the language of the statute and its legislative history. We

find that the statute itself makes no explicit mention of

the sentence actually imposed as a factor the Commis-

sion must consider. Further, as the district court found,

it is difficult to construe the general criteria set forth in

18 U.S.C. § 4206(a) as implicitly encompassing sen-

tence length. The lower court reasoned:

[tlhe twin conclusions that release of a prisoner

would not “depreciate the seriousness of his offense

or promote disrespect for the law,” and would not

“jeopardize the public welfare” are reached by exam-

ining “the nature and circumstances of the offense”

and “the history and characteristics of the pris-

oner.” 18 U.S.C. § 4206. Thus, the Commission

must review the character of the offense, not the

sentence imposed for that offense. Arguably, “the

history and characteristics of the prisoner,” 18

U.S.C. § 4206(a), could include the sentence he is

currently serving. When Congress expressly

itemized the information that the Commission is

required to consider, however, it failed to specify

sentence length. Instead, Congress included in the

list “recommendations regarding parole... by the

sentencing judge.” 18 U.S.C. § 4207(4).

“App. Al7-

Geraghty, 552 F. Supp. at 287 (emphasis in original).

In addition, the legislative history does not reveal

any intent on the part of Congress to require the Com-

mission to consider sentence length in making its

parole release decisions. In fact, the Conference Report

indicates that the substance of the judgments made by

the Commission under 18 U.S.C. § 4206 is completely

within its discretion. H.R. Conf. Rep. No. 94-838, 94th

Cong., 2d Sess. 26, reprinted in 1976 U.S. CodeCong. &

Ad. News 351, 358. Further. the Conference Report

states:

Determinations of just punishment are part of

the parole process, and these determinations can-

not be easily made because they require an even-

handed sense of justice. . . . it is important for the

parole process to achieve an aura of fairness by bas-

ing determinations of just punishment on compa-

rable periods of incarceration for similar offenses

committed under similar circumstances.

Id. (emphasis added). Finally, the Conference Report

characterizes parole as having “the practical effect of

balancing differences in sentencing policies and prac-

tices between judges and courts.” /d. at 352. A finding

that the parole decisionmaking process must use the

individual sentence length as its starting point would

frustrate these directives. Moreover. as previously set

forth, the minimum incarceration ordered by the sen-

tencing judge must always be respected by the Commis-

sion, depending upon whether the sentence is imposed

under 18 U.S.C. 8§ 4205(a), 4205(b)(1). or 4205(b)(2).

We hold, therefore, that although the guidelines do not

explicitly consider sentence length as part of the parole

decisionmaking process, this failure does not violate the

PCRA. On the contrary the statute instructs the Com-

mission to use its own judgment in factoring sentence

length because sentencing and parole are separate. al-

though related, processes.

VI.

This brings us to Geraghty’s final contention that a

statutory construction by us that the PCRA properly au-

thorizes the guidelines would render the statute uncon-

Stitutional as either an impermissible delegation of a

judicial function or a standardless delegation of a legis-

lative function.

Geraghty’s constitutional attack starts where his

attack on the validity of the guidelines left off. He argues

that the Commission cannot, as it is directed to do, at-

tempt to eliminate sentence disparity if it ignores the

length of the sentence imposed by the trial judge. How-

ever, if, as we have just concluded, the Commission

need not expressly consider sentence length in the

parole decisionmaking process, then, in effect, it is

making sentencing decisions. If such decisions are

properly authorized by PCRA, appellant continues, the

statute, as so construed, would violate the Constitution

as an impermissible delegation of a judicial function to

the executive. As authority for both these arguments,

appellant seizes on a statement by our court, speaking

through Judge Adams, in Geraghty v. United States

Parole Commission:

When... the parole authority focuses consideration

entirely on factors of deterrence, incapacitation and

retribution, it takes into account almost exclusively

the very factors that are available to the sentencing

judge. ... Atleast where the prior determinations of

the judicial branch are given no weight, therefore,

serious questions are raised whether the constitu-

tional protections provided by an independent

judiciary are being undermined.

579 F.2d at 261. But this statement of ourcourt must be

considered in light of the development of our law. When

-App. Al9-

Geraghty was decided, its approach was congruent with

this court's views, as summarized in Addonizio v.

United States. 573 F.2d 147 (3d Cir. 1978), rev'd, 442

U.S. 178 (1979):

In the seminal case of United States v. Salerno,

538 F.2d 1005 (3d Cir. 1976), this court formulated

a rule that resentencing is required in a § 2255 pro-

ceeding where implementation of the Parole Com-

mission’s guidelines frustrated the sentencing

judge's probable expectations in the imposition ofa

sentence pursuant to 18 U.S.C. § 4208(a)(2). In

that case we found that the sentencing judge's in-

tentions had been clearly stated at the time of sen-

tencing. Subsequently, in United States v. Somers.

552 F.2d 108, 113 (3d Cir. 1977), we emphasized

that “the intent and expectation of the district court

judge who sentences under § 4208(a)(2)... are con-

trolling and... must be searched out to determine if

relief may be ordered under 28 U.S.C. § 2255.”

Further, we said that “in ourjudgment. there can be

no better evidence or a sentencing judge's expecta-

tions or intent than his own statement of those

facts,” id., and determined that the intent or expec-

tation could be derived from the sentencing judge's

statement at the § 2255 hearing. In United States

v. Solly, 559 F.2d 230 (3d Cir. 1977), we extended

the rule of Salerno and Somers to a sentence im-

posed pursuant to 18 U.S.C. § 4208(a)(1).

573 F.2d at 150 (footnote omitted). Our opinion in Ad-

donizio, issued two weeks prior to our opinion in

Geraghty. represented the high water mark of this

court's stated philosophy that notwithstanding inter-

vention of parole guidelines, “a sentencing judge's in-

tent and probable expectations should be vindicated to

the fullest extent possible.” 573 F.2d at 152. Speaking

through the writer of the present opinion, we stated:

-App. A20-

The rationale underlying this broad discretion af-

forded the sentencing judge is the same as that

supporting the latitude given the trial judge in his

other discretionary functions. namely, “the

superiority of his nether position. It is not that he

knows more than his loftier brothers; rather, he

sees more and senses more.” M. Rosenberg, Judi-

cial Discretion of the Trial Court, Viewed from

Above, 22 Syracuse L.Rev. 635, 663 (1971). Given

this near-absolute control over maximum punish-

ment, it would necessarily follow that the sentenc-

ing judge's intentions and expectations as to actual

time of incarceration should be vindicated to the

greatest extent possible.

573 F.2d at 152. The observations of the Geraghty panel

relied on by appellant reflect this philosophy precisely.

But this court's approach, as reflected in Geraghty

and Addonizio. was not approved by the Supreme

Court. In United States v. Addonizio, 442 U.S. 178

(1979), the Court forcefully and totally rejected the

accretion of precepts emphasizing the importance of the

sentencing court's views as reflected in our Salerno.

Somers, Solly, Addonizio and Geraghty opinions.’

7. Recently. a panel of this court stated:

(njotwithstanding Geraghty's vacatur on other grounds |by

the Supreme Court] and the fact that its holding represents the

minority position in the federal appellate courts. .. . Geraghty

° appears to have retained its vitality as the law of this Circuit. see

United States v. Ferri .. .. 652 F.2d at 327-28: United States ex

rel. Goldberg v. Warden . . .. 622 F.2d at 65. However. to the

- extent that the vacatur may still be said to have undermined its

force as binding precedent, we now reaffirm Geraghty's holding

and adopt its reasoning as our own.

United States ex rel. Forman v. McCall. No. 82-3021 (3d Cir. filed

June 10. 1983). Although this statement could be taken to suggest

-App. A2l-

Where we had stated that “the sentencing judge's inten-

tion and expectation as to the actual time of incarcera-

tion should be vindicated to the greatest extent possi-

ble,"573 F.2d at 152 (emphasis supplied), the Supreme

Court flatly said:

The import of this statutory scheme isclear: the

judge has no enforceable expectations with respect

to the actual release of a sentenced defendant short

of his statutory term. The judge may well have ex-

pectations as to when release is likely. But the ac-

tual decision is not his to make, either at the time of

sentencing or later if his expectations are not met.

Addonizio, 442 U.S. at 190. The Court made it crystal

clear that

[tlhe decision as to when a lawfully sentenced de-

fendant shall actually be released has been commit-

ted by Congress, with certain limitations, to the

discretion of the Parole Commission. Whether

wisely or not, Congress has decided that the Com-

mission is in the best position to determine when

release is appropriate, and in doing so, to moderate

the disparities in the sentencing practices of indi-

vidual judges. The authority of sentencing judges to

select precise release dates is, by contrast, narrowly

limited: the judge may select an early parole eligibil-

ity date, but that guarantees only that the defen-

dant will be considered at that time by the Parole

Commission.

that our court's decision in Geraghty remains alive, even after Ad-

donizto, we decline to read it that way. As Forman concerned only

the issue of whether retroactive application of the parole guidelines

constitutes a violation of the ex post facto clause. we limit its reaffir-

mation of Geraghty to that issue.

Id. at 188-89 (footnotes omitted). Although in Geraghty

the Supreme Court was careful to explain that it was not

meeting the precise question now before us — whether

the statute, if construed to allow for the guidelines then

becomes an unconstitutional infringement by the

executive into the area of judicial decisionmaking — we

conclude that its previous decision in Addonizio re-

quires a rejection of appellant's present constitutional

contention.

Although the Court inAddonizio did not couch its

decision in constitutional terms, we suggest that it

would be attributing to the Supreme Court maximum

dalliance in sophistry to argue that it might vigorously

state in 1979 a doctrine that severely limited the sen-

tencing court's powers vis-a-vis the PCRA, and later, in

this or another case, entirely undercut its reasoned and

powerful substantive decision and say, “Oops, our

unanimous decision in 1979 was patently unconstitu-

tional!” We refuse to impute such jurisprudential fick-

leness to the highest court of this land. Accordingly, we

believe that the reasoning of Addonizio also controls

our resolution of appellant's impermissible delegation

of judicial authority argument. In addition to our con-

viction that Addonizio is dispositive, we also hold that

the PCRA, construed so as to authorize the guidelines,

does not violate the separation of powers doctrine. We

now turn to that analysis.

The federal Constitution, unlike some state con-

stitutions, has noexpress provision which prohibits the

officials of one branch of government from exercising

functions of the other branches. Instead the doctrine of

separation of powers is inferred from the fact that the

legislative, executive. and judicial functions are de-

scribed in three separate articles of the Constitution.

Springer v. Philippine Islands. 277 U.S. 189, 201

-App. A23-

(1928). The Constitution does not require three airtight

departments of government. Nixon v. Administrator of

General Services, 433 U.S. 425, 443 (1977). As Chief

Justice Warren observed in United States v. Brown, 381

U.S. 437, 443 (1965):

This “separation of powers” was obviously not insti-

tuted with the idea that it would promote gov-

ernmental efficiency. It was, on the contrary, looked

to as a bulwark against tyranny. For if governmen-

tal power is fractionalized, if a given policy can be

implemented only by a combination of legislative

enactment, judicial application, and executive im-

plementation, no man or group of men will be able

to impose its unchecked will.

The separation of powers inquiry is not so much a re-

view of theoretical abstractions of “who ought to do

what” as it is a pragmatic analysis of the extent to which

an act by one branch of government prevents another

from performing its assigned duties and disrupts the

balance among the coordinate departments of govern-

ment. Nixon, 433 U.S. at 443.

Unlike interpreting the Constitution or adjudicat-

ing disputes, sentencing is not inherently or exclusively

a judicial function. Ex parte United States, 242 U.S. 27,

41-42 (1916) (no inherent judicial power to suspend op-

eration of a term of imprisonment). The legislature can

limit the judiciary’s authority to impose a probationary

sentence, United States v. Denson, 603 F.2d 1143 (5th

Cir. 1979)(in banc), require that a mandatory term of

years be imposed, United States v. Davis, 560 F.2d 144

(3d Cir. ), cert. denied, 434 U.S. 839 (1977), or preclude

a rehabilitative sentencing option, Marshall v. United

States, 414 U.S. 417 (1974). Circumscribing the

judiciary’s authority as to what length of imprisonment

may be imposed has been found to be proper invasion of

that branch’s authority. Smith v. United States, 284

F.2d 789 (Sth Cir. 1960) (upholding constitutionaility of

18 U.S.C. § 2114 requiring imposition of maximum

term): United States v. Lewis, 300 F. Supp. 1171 (E.D.

Pa. 1969) (upholding constitutionality of 26 U.S.C.

§ 7237 requiring imposition of mandatory sentence).

Recent Supreme Court decisions describe the in-

teraction of the three branches of government in sen-

tencing. Deciding what factors a judge may consider in ©

imposing incarceration, the Court in United States v.

Grayson, 438 U.S. 41, 47 (1978), set out the respective

roles of the judiciary and the executive branch:

[Tloday the extent of a federal prisoner's confine-

ment is initially determined by the sentencing

judge, who selects a term within an often broad,

congressionally prescribed range: release on parole

is then available on review by the United States

Parole Commission which, as a general rule, may

conditionally release a prisoner any time after he

serves one-third of the judicially fixed term. See 18

U.S.C. § 4205 (1976 ed.).

As we emphasized earlier, Addonizio reiterated this

three-way sharing of responsibility in which Congress

sets the statutory maximum sentence, the courts im-

pose sentences within those limits, and the Commis-

sion establishes release dates within the eligibility

range of the courts’ sentences. Both Addonizio and

Grayson echo Chief Justice Warren's observation on the

separation of powers doctrine that “a given policy can be

implemented only by a combination of legislative

enactment, judicial application, and executive im-

plementation.” United States v. Brown, 381 U.S. at

443.

Acknowledging these principles, courts that have

expressly ruled on this issue have determined that the

parole guidelines adopted under the PCRA do not un-

-App. A25-

constitutionally infringe on ajudicial function. Seee.g..,

Artez v. Mulcrone, 673 F.2d 1169 (lOthCir. 1982); Page

v. United States Parole Commission, 651 F.2d 1083

(5th Cir. 1981); Priore v. Nelson, 626 F.2d 211 (2d Cir.

1980); Moore v. Nelson, 611 F.2d 434 (2d Cir. 1979);

Joost v. United States Parole Commission, 535 F.

Supp. 71 (D. Kan. 1982); Hawkins v. United States

Parole Commission, 511 F. Supp. 460 (E.D. Va. 1981),

affd, 679 F.2d 881 (4th Cir. 1982); Wilden v. Fields,

510 F. Supp. 1295 (W.D. Wis. 1981): Garcia v. United

States Board of Parole, 409 F. Supp. 1230 (N.D. Ill.

1976), rev'd on other grounds, 557 F.2d 100 (7th Cir.

1977).

In sum, if Congress may limit the authority to im-

pose certain punishments, it also may limit the judicial

sentencing function to that of imposing maximum and

minimum terms, and, without offending the Constitu-

tion, establish in the executive branch a parole commis-

sion which, within those judicially-imposed limits,

makes a completely independent decision as to the ac-

tual release date. Not only is sentencing not an exclu-

sively judicial prerogative, the PCRA does not eviscerate

the effect of the judge's selection of a particular sentence

length. The Commission may not require a prisoner to

spend a single day in prison longer than his judicial sen-

tence dictates, regardless of whether it thinks that the

judge mischaracterized the nature of the offense or the

offender's potential for committing further harm. In ad-

dition, the Commission may not release 4 prisoner even

one day earlier than his judicially set parole eligibility

date unless permission is obtained from the court under

18 U.S.C. § 4205(g).°

8. 18U.S.C. § 4205ig) provides

At any time upon motion of the Bureau of Prisons, the court

may reduce any minimum term to the time the defendant has

served. The court shail have jurisdiction to act upon the applica-

tion at any time and no hearing shail be required.

-App. A26-

Appellant's final constitutional argument, suggest-

ing that the PCRA is unconstitutional because it repre-

sents the standardless delegation of a legislative func-

tion, also derives from a single observation made by this

court when this case was previously before us. Among

the concepts we suggested that plaintiff had to establish

at trial to give force and sinew to his constitutional ar-

gument was, in our words, the possibility that the PCRA

“delegate{s) so crucial a legislative function [as the re-

drafting federal criminal penalties] to a non-

representative body with no standards other than a di-

rection that the results ‘not depreciate the seriousness

of the offense’ and ‘be consistent with the public wel-

fare.’ Geraghty, 579 F.2d at 263. We have carefully

examined the record and conclude that appellant failed

at trial to supply evidence or provide legal authorities to

demonstrate that the PCRA delegates impermissible

public policymaking prerogatives to the Commission or

that the statute is void of ascertainable standards

against which a court may measure the Commission's

exercise of discretion.

Simply stated, the PCRA does not permit the Com-

mission to redraft federal criminal statutes. As suc-

cinctly explained by the district court:

It is clear from .. . the interaction between the

statutory maximum, the sentence imposed, and the

parole release date, that the guidelines do not per-

form any such function. The federal criminal

statutes, on the one hand, fix the maximum penal-

ties for the crimes they define. The guidelines, on

the other hand, operate within the limits set by the

Statute, as well as within the confines of the sen-

tence. Moreover, . . . the guidelines specify time

ranges for the typical length of imprisonment be-

fore parole, as opposed to maximum time periods

-App. A27-

set by statute, for various combinations of offense

severity and offender characteristics.

Geraghty, 552 F. Supp. at 292 (emphasis in original).

What appellant does not recognize — or perhaps refuses

to —is that because the guidelines establish the time to

be served before release in the typical case, they do not

conflict with or assume the legislative function of set-

ting maximum penalties for the most heinous ones.

Yet, even if the statute could be construed as

delegating some legislative power to the Commission.

we think that compared to other administrative law

precedents it withstands constitutional attack. Courts

have consistently upheld much more expansive delega-

tions of authority to agencies to regulate the conduct of

members of the public. See, e.g., Yakus v. United

States, 321 U.S. 414 (1944) (price controls imposed

under Emergency Price Control Act of 1942): Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S. 81 (1940) (sales

tax imposed under Bituminous Coal Conservation Act):

United States v. Gordon, 580 F.2d 827 (5th Cir.). cert.

denied, 439 U.S. 1051 (1978) (drug control standards

established by the Comprehensive Drug Abuse Preven-

tion and Control Act). In fact, the Supreme Court has

declared statutes unconstitutional on the basis of an

improper delegation of a legislative function on only two

occasions. See Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935): Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935).

Accordingly, we determine that the statutory

criteria set forth by Congress in 18 U.S.C. § 4206 are

sufficiently specific to guide the Commission in making

parole release decisions. They identify the duties and re-

sponsibilities of the Commission and enable a reviewing

court to deter~ ine whether the guidelines use statutor-

ily permissible parole factors. See Bowles v. Willing-

ham, 321 U.S. 503. 515 (1944). In addition. the legisia-

-App. A28-

tive history of the PCRA discusses in some detail the in-

terpretation of virtually every phrase in § 4026, thereby

giving the Commission and the courts added insight

into how parole decisions should be made under the

statute. H.R. Conf. Rep. No. 94-838, 94th Cong., 2d

Sess. 25-27, reprinted in 1976 U.S. Code Cong. & Ad.

News 351, 357-60.

These two sources — statutory text and legislative

history — provide far more guidance as to the will of

Congress in enacting the statute than the standards

that have been used to sustain other delegations oflegis-

lative power. See, e.g., Lichter v. United States, 334

U.S. 742, 785-86 (1948) (permitting recovery of “exces-

sive profits” earned on war contracts); Yakus, 321 U.S.

at 427 (permitting price controls that are “generally fair

and equitable”); Federal Power Commission v. Hope

Natural Gas Co., 320 U.S. 591, 600 (1944) (permitting

Commission to fix “just and reasonable” rates for natu-

ral gas); National Broadcasting Co. v. United States,

319 U.S. 190, 225-26 (1943) (permitting licensing of

radio communications “as public interest, convenience

or necessity requires”); New York Central Securities

Corp. v. United States, 287 U.S. 12, 24 (1932) (permit-

ting consolidation of carriers when “in the public inter-

est”). It is clear, therefore, that the delegation of a legis-

lative function need not be accompanied by a precise

formula for the agency to apply. Instead, Congress need

only lay down an “intelligible principle” to which the

agency must conform. National Cable Television Assn.

v. United States, 415 U.S. 336, 342 (1974): Hampton v.

United States, 276 U.S. 394, 409 (1928). The standards

given to the Commission amply satisfy this require-

ment.

Further. courts that have expressly considered the

question of whether the PCRA violates the Constitution

as an impermissible delegation of a standardless legisla-

tive function have determined that it does not. See, e.g..

-App . A29-

Priore v. Nelson, 626 F.2d 211 (2d Cir. 1980): Moore v.

Nelson, 611 F.2d 434 (2d Cir. 1979): Wilden v. Fields.

510 F. Supp. 1295 (W.D. Wis. 1981). Cf. Bachman v.

Jeffes, 488 F. Supp. 107 (M.D. Pa. 1980) (upholding

under state constitution a Pennsylvania statute requir-

ing the Board to consider if and when release from a ju-

dicially imposed term of confinement should occur).

Congress is presumed to have acted within the bounds

of the Constitution in enacting legislation. Fleming v.

Nestor, 363 U.S. 603, 617 (1960). That presumption is

strongly supported by our analysis of the PCRA.

VII.

Accordingly, we will affirm the judgment of the dis-

trict court in all respects.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

IN THE UNITED STATES DISTPICT CCURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN M. GERAGHTY, individually

and on behalf of a class, Civil

Action

Plaintiffs, 76-1467

UNITED STATES PAROLE COMMISSION,

)

-vs- )

)

et al., )

)

Defendants.

MEMORANDUM

I. INTRODUCTION

This action was initiated on September

15, 1976 when Plaintiff Geraghty filed a

complaint seeking Geclaratory and injunc-

tive relief in the United States District

Court for the District of Columbia. Plain-

tiff attacked the Parole Commission and

Reorganization Act, P.L. 94-233, 18 U.S.C.

§§4201 et seg. (hereafter referred to as

"PCRKA"), and the regulations and guide-

lines promulgated thereunder, 28 C.F.R.

§2.20. The District of Columbia federal

“App. Bl-

court ordered the case transferred to us

on November 12, 1976 and we received the

file on December 3, 1976.

Plaintiff Geraghty was convicted in the

United States District Court for the Nor-

thern District of Illinois of conspiracy

to commit extortion, 18 U.S.C. §1951, and

of making false material declarations to a

grand jury, 18 U.S.C. §1623. Geraghty had

used his position as a vice squad officer

on the Chicago police force to extort mon~

ey from dispensers of alcoholic beverages.

The false declarations concerned his in-

volvement in this shakedown. Geraghty was

Sentenced to concurrent prison terms on

January 25, 1974. His conviction was af-

firmed in United States Vv. Braasch, 505

F.2d 139 (7th Cir. 1974), cert denied, 421

U.S. 910. (1975). The sentencing judge

later reduced Geraghty's sentence because

the parole guidelines would not have indi-

“App. B2-

cated parole before the expiration of his

sentence. United States v. Braasch, No. 72

C.R. 979 (N.D. Ill. 1975), appeal dis'd

and mandamus denied, 542 F.2d 442 (7th

Cir. 1976).

Geraghty had applied for release by pa-

role and had been denied in January of

1976. He applied again in June of 1976.

The Parole Commission decided that a re-

lease date outside the parole guidelines

Gid not appear warranted. Geraghty was

therefore required to stay in frison, un-

paroled, until the expiration of his sen-

tence, less good-time credits. Subsequent

to the second denial of parole, Geraghty

instituted this civil action by filing the

complaint. On February 24, 1977, we denied

Plaintiff's motion to certify a class,

construed the action as a habeas corpus

Proceeding, and granted the Defendants’

motion for summary judgment. Geraghty v.

-App. B3-

United States Parole Commission, 429

F.Supp. 737 (M.D.Pa. 1977).

Geraghty, individually and on behalf of

the class, appealed. On June 30, 1977, be-

fore any briefs were filed with the cir-

cuit court, Geraghty had been mandatorily

released from prison upon expiration of

his sentence. Both the Third Circuit Court

of Appeals and the United Statrs Supreme

Court held that they had jurisdiction to

hear the appeal of a plaintiff whose re-

guest for class certification had been

denied, even if the claims of that plain-

tiff were made moot before the appellate

courts could rule on the class issue.

The Third Circuit Court of Appeals, on

March 9, 1978, reversed and remanded the

case to us. Geraghty v. United States Pa-

role Commission, 579 F.2d 238 (3d Cir.

1978). The circuit court ruled that this

case is not necessarily a habeas corrus

“App. B4-

action. "The class does not demand that

its members be released on parole, but on-

ly that the Parole Board not utilize the

guidelines in evaluating future parole ap-

plications.” Geraghty, 579 F.2d at 244,

The court concluded that this action could

Properly proceed as an action for declara-

tory judgment. Id. The court also ruled

that we erred in failing to consider sua

Sponte the possibility of creating sub-

Classes when we denied class certifica-

tion. Id. at 252-53, Finally, the court

decided that certain factual issues exist-

ed concerning the guidelines’ lawfulness,

thereby precluding the entry of summary

[1]

judgment. Id. at 268.

(1) The court also expounded at some

length, although in dicta, on the merits

of the lawfulness of the PCRA and the

guidelines. 579 F.2d at 254-67.

“App. B5S-

The United States Supreme Court granted

certiorari, 440 U.S. 945 (1979), and, on

March 19, 1980, issued its opinion vacat-

ing the decision of the Court of Appeals

for the Third Circuit and remanding the

case for further proceedings. 445 U.S. 388

(1980). The Supreme Court rejectec the

circuit court's suggestion that we should

have, sua sponte, considered subclasses

when we rejected the proposed class. Id.

at 408. The Court ruled that, on remand,

it was our responsibility to determine the

Class issue anew and to decide whether

Geraghty or some other representative can

press the class claims.

On December 10, 1980, we reviewed

Plaintiff's motions to certify a class and

to amend the complaint and granted them in

part and denied them in part. We certified

the following class:

All federal prisoners in the Middle

District of Pennsylvania who are, or

will become, eligible for parole re-

lease under 18 U.S.C. §4205(a), and

who have been, or who will be, denied

parole and continued to the expira-

tion of their sentence.

We limited the class certification to two

of the five legal issues advanced by

Plaintiff. First, is the PCRA facially

unconstitutional? Second, are the regula-

tions promulgated under the PCRA, espe-

cially the guidelines for decision-making,

arbitrary and unlawful? !4]

By that same December 10, 1980 order,

we dismissed the remaining three issues:

first, the ex post facto effect of retro-

active application of the guidelines to

Prisoners sentenced before the effective

[2] Plaintiffs' counsel argues that we

need only consider the constitutionality

of the PCRA if we believe the guidelines

are consistent with it. We agree that if

we find that the guidelines are unlawful,

then we need not address the PCRA issue.

-App. B7-

date of the PCRA and its regulations; sec-

ond, the lawfulness of the application of

the guidlines to prisoners in parole con-

Siderations; and last, the treatment of

Prisoners sentenced under 28 U.S.C.

§4205(b)(1) and (b)(2) compared to prison-

ers who received regular adult sentences

and who are eligible for parole after ser-

ving one-third of their sentence. On De-

cember 30, 1980, an amended complaint was

filed, with leave of court, adding Edward

Levine as a party plaintiff. We approved

the type of notice to the class on May 18,

1980 and held a non-jury trial on June 29,

1981. The transcript, exhibits, and briefs

have now been filed and we will proceed to

resolve this case con the merits.

II. BACKGROUND OF THE PCRA

A. General

In 1910, Congress enacted the first le-

gislation authorizing the parole of fede-

-App. B8-

ral prisoners. |3] Act of June 25, 1910,

ch. 387, §1, 36 Stat. 819. Not until 1973,

however, did the federal parole authority

establish published regulations governing

parole decisionmaking. 38 Fed.Reg. 26,652

(1973). Under the direction of the lead

Defendant's predecessor, the United States

Board of Parole, an experiment with the

use of guidelines for parole decisions was

conducted and found to be helpful in re-

sclving problems in the federal partble sy-

[4]

stem.

In apparent approval of the system de-

vised by the Board of Parole, Congress en-

acted the PCRA in 1976, creating Defendant

[3] For the general background and at

least one commentator's view of the pre-

sent federal parole system, see Comment,

Federal Parole Decisionmaking: Judicial

Review for the Fortunate and Few, 85

Dick.L. Rev. 501 (1981).

[4] M. Gottfredson, P. Hoffman, & L. Wil-

kins, Guidelines for Parole and Sentencing

18-37 (1976). See Section III.A. infra.

-App. B9-

United States Parole Commission (hereafter

referred to as “the Commission"), 18

U.S.C. §4302, and requiring it to promul-

gate guidelines. 18 U.S.C. §4203(a)(1).!>)

The statute also mandates parole decisions

in accordance with the guidelines promul-

gated under 4203(a)(1) unless the Commis-

sion determines that there is good cause

for departing from the guidelines. 18

U.S.C. §4206(c).!®!

The general criteria for making parole

decisions set forth in the PCRA are as

follows:

If an eligible prisoner has substantially

observed the rules of the institution or

institutions to which he has been confin-

[5] But see Geraghty v. United States Pa-

role Commission, ins F.2d 238, 257 & N.ve

(3d Cir. 1978) (Specifics of the existing

guidelines were under some attack).

[6] Section 4206(c) also requires the

Commission to provide the prisoner with

written reasons for its decisicn to grant

Or deny parole authority notwithstanding

the Bet@elines.

-App. Bl0-

ed, and if the commission, upon conside-

ration of the nature and circumstances of

the offense and the history and charac-

teristics of the prisoner, determines:

(1) that release would not depreci-

ate the seriousness of his offense or

promote disrespect for the law; and

(2) that release would not jeopard-

ize the public welfare; subject to the

provisions of subsections (b) and (c) of

this section, and pursuant to guidelines

promulgated by the Commission pursuant to

section 4203(a)(1), such prisoner shall

be released.

18 U.S.C. §4206. Congress enumerated cer-

tain material that the Commission was re-

quired to consider, if available and rele-

vant:

(1) reports and recommendations which

the staff of the facility in which such

prisoner is confined may make;

(2) official reports of the prison-

er's prior criminal reccrd, including a

report or record of earlier probation

and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the

prisoner's parole made at the time of

sentencing by the sentencing judge; and

-App. Bll-

(5) reports of physical, mental, or

psychiatric examination of the offen-

der.

B. Legislative History

Congress began consideration of parole

reform legislation in 1972 with the intro-

duction of House Bill 13118 and Senate

Bill $2883. !7) Successsive sessions of

Congress examined proposed amendments to

the parole statute. On May 13, 1975, the

House Judiciary Committee reported H.R.

5725, accompanied by House Report 94-184.

[7] At the beginning of the 92nd Con-

gress, the House Subcommittee on Court,

Civil Liberties, and the Administration of

Justice undertook an extensive nationwide

review of the problems of the penal are,

tice system. H.R.Rep. No. 94-184, 4th

Cong., lst Sess. (1975). The Subcommittee

on National Penitentiaries of the Senate

Judiciary Committee also began seeking

legislative answers to the criticisms

directed at the parole process. Following

the appointment of Maurice H. Sigler as

Chairman of the U.S. Board of Parole in

1972, a working relationship developed

between the board and the two Subcommit-

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

Cong., 2d Sess. 6, reprinted in [1976]

U.S.Code & Ad.News 351, 259.

-App. Bl2-

See H.R. Rep. No. 94-184, 94th Cong., lst

Sess. (1975). It was considered and passed

by the House on May 21, 1975. 121 Cong.

Rec. 15716. The Senate Judiciary Committee

reported an amended version of H.R. 5727

On September 11, 1975, accompanied by Sen-

ate Report 94-369. See S.Rep. No. 94-369,

94th Cong., 1st Sess. 25, reprinted in

[1976] U.S. Code Cong. & Ad.News. 335. The

amended version was passed by the Senate

on September 16, 1975. The House and Sen-

ate versions differed markedly in their

approaches to the problems of parole re-

form.

1. The House Bill

The most distinguishing feature of the

House Bill was the presumption it created

in favor of parole at the time of eligibi-

lity. Section 4205 of the House Bill pro-

vided that

(a) A prisoner shall be released on

parole if his record shows that he has

-App. Bl3-

Substantially observed the rules of

the institution in which he is confin-

ed on the date of his eligibility for

parole, unless...

(1) there is a reasonable probability

that such prisoner will not live

and remain at liberty without

violating any criminal law;

(2) there is a reasonable probability

that such release would be incom-

patible with the welfare of soci-

ety; or

(3) the prisoner's release on such

date would so deprecate the seri-

ousness of his crime as to under-

mine respect for the law.

H.R.Rep. No. 94-184, supra, at 20 (empha-

sis added). |9!

[8] Section (b) of Section 4205 of the

House Bill stated:

Any prisoner not earlier released under

subsection (a) . . . shall be released

On parole after he has served two-

thirds of his sentence, or after twenty

years in the case of a sentence of

thirty years or longer .. . whichever

is earlier, unless it is determined

that he shouId not be so released

because there is a high likelihood that

he will engage in conduct violating any

Criminal law.

“App. Bl4-

In most instances a prisoner would be

eligible for parole, at the latest, after

he had served one-third of his sen-

tence. (9]

Section 4206 of the House Bill speci-

fied the information to be considered in

making a parole determination:

(T)here shall be taken into account the

factors established by the Commission

under section 4204(a)(1) [authorizing

the promulgation of general policies,

guidelines, rules and regulations]; and

(1) any reports and recommendations

which the staff of the facility in

which such prisoner is confined may

make;

(2) any official report of the pris-

oner's prior criminal record, including

a report or record of earlier probation

and parole experiences;

[9] If a prisoner is serving a definite

term of over 180 days, he is eligible for

parole at the one-third point in his sen-

tence. The sentencing court, however,

could specify a minimum term to be served,

not more than one-third of the maximum, or

direct that the prisoner be immediately

eligible for parole. H.R.Rep. No. 94-184,

Supra at 4-5.

-App. B15-

Id.

(3) any presentence investigation re-

port;

(4) any recommendation regarding the

prisoner's parole made at the time of

sentencing by the sentencing judge; and

(5) any reports of physical, mental,

Or psychiatric examination of the of-

fender.

There shall also be taken into consid-

eration such additional relevant infor-

mation concerning the prisoner (includ-

ing information submitted by the pri-

soner) as may be reasonably available.

at 21. In addition, the House Report

declared: "It is the intent of the Com-

mittee that all available information on

the efforts that the prisoner may have

made to improve his education, skills, or

personal attributes be considered by the

Commission.” Id. at 6. House Bill 5727

also required the Commission to furnish

the prisoner with written reasons for its

decision, including a summary of the evid-

ence relied upon if parole is denied, and

directed the examining panel “to advise

the prisoner of what he ought to do to en-

“App. Bl6-

hance his prospects for parole.” Id. at 7.

These latter provisions were aimed at pro-

viding "an infusion of due process into

Federal Parole procedure,” to correct a

System the House Committee viewed as "the

Single most inequitable, potentially ca-

Pricious, and uniquely arbitrary corner of

the criminal justice map." Id. at 2.

2. The Senate Bill

The Senate Bill, in contrast, was

couched in more conservative terms. While

acknowledging the criticism directed at

the existing parole system and the need

for “both the fact and appearance of fair-

ness to all,” the Senate Committee on the

Judiciary also recognized the importance

of balancing concern for equity toward the

individual inmate against "responsibility

for the protection of the larger society."

S.Rep.No. 94-369, 95th Cong., Ist Sess.

“App. B1l7-

25, reprinted in [1976] U.S.Code Cong. &

Ad. News 335, 340.

The Senste Bill eliminated the presump-

tion in favor of parole contained in the

House version. Instead, the Senate measure

retained existing criteria for making pa-

role decisions at the time of parole eli-

gibility. 29)

Parole would not be granted

unless the Commission determined that,

first, the individual had substantially

observed the rules of the institution; se-

cond, there is a reasonable probability

that he will not violate the law on re-

lease; and last, his release is compatible

with the general welfare of society.

S.Rep. No. 94-369, supra, at 344.

The Senate legjslation anticipated the

adoption of administrative guidelines to

[10) The times set for parole eligibility

were substantially the same in both the

Senate and House Bills. See note 9 Supra.

eney now appear in Section 4205 of the

PCRA.

-App. B1l8-

"give definiteness to the indefinite na-

ture of most federal criminal cases -- by

reducing the opportunity for sentencing

disparity and abuse of discretion and by

giving to parole an aura of fairness for

both victim and offender." Id. at 340.

The Commission was required to meet peri-

odically to establish procedural rules and

guidelines for parole determinations "so

that the administration of parole through-

Out the Federal System will be uniform."

Id. at 342. The Senate report referred

explicitly to the guidelines then in use

by the Parofe Board as a result of its ex-

perimental project. Id. at 340 & 346, (11)

Although the Senate Committee did not in-

tend the existing guidelines to remain un-

changed, id. at 340 & 347, the Committee's

comments clearly indicated approval of the

system. In the language of the Report,

“App. B19-

The guidelines take into account the

circumstances of the individual both

in his personal life and with respect

to the offense which he has committed,

as well as measuring the severity of

the offense involved so as to signifi-

cantly reduce the area of discretion

which the Parole Commission, in fact,

has in any given case. Id. at 340.

Under the Senate Bill, a parole deci-

sion pursuant to the guidelines was to be

made primarily on the basis of a report

prepared by the Bureau of Prisons summari-

zing the prisoner's criminal and social

background, his mental and physical

health, and his institutional behavior and

participation in institutional problems.

Id. at 344. The Commission was also autho-

rized to seek additional information from

other government agencies. Id. Once a

{ll} The reference to the promulgation of

guidelines in the House Bill, in contrast,

was a vague and general one. See H.R.Rep.

No. 94-184, supra, §4206(a) at 17. In the

House system, with its emphasis on a pre-

sumption of parole at a fixed time, the

need for definitive guidelines, to provide

more certainty in the parole process, was

Significantly reduced.

“App. B20-

parole decision was made, the inmate was

to receive a written statement of the de-

termination, including an “understandable

explanation” of the application of the

guidelines, or of the factors causing a

determination outside the guidelines. Id.

at 346.

3. The Conference Report

The bill that emerged from the House-

Senate Conference Committee, which even-

tually became the PCRA, represented a com-

promise between the diverse positions of

the House and the Senate. The Conference

Committee chose to delete the House Bill's

presumption of parole at eligibility. In-

Stead, the Conference Report adopted the

approach of the Senate version, designat-

ing the Parole Commission guidelines as

"the fundamental gauge" for a parole poli-

cy “which seeks to achieve both equity be-

“App. B2l-

tween individual cases and a uniform mea-

sure of justice." H.R. Conf.Rep. No. 94-

838, 94th Cong., 2d Sess. 6, reprinted in

[1976] U.S.Code Cong. & Ad.News 351,

359, [12]

[12] Compare S.Rep. No. 94-369, supra at

340. Although the Conference Report

Clearly contemplated the use of guidelines

and alluded to the reorganization of the

Parole Board "along the lines of the leg-

islation presented here," H.R.Conf.Rep.

No. 94-938, supra, at 352, the language of

the Report does not contain any specific

reference to the guidelines then in ef-

fect. The circuit court, in its previous

decision in this mater, considered this

extremely slight change of emphasis from

the Senate Report a_ significant Oint.

See Geraghty, 579 F.2d at 258 & n.9l. We

respectfully disagree. We read the direc-

tive to the Commission to be "cognizant of

past criticism of parole ee ee

H.R.Conf.Rep. No. 94-838, supra, at 359,

as a reference to the lack of uniformity

and potential inequity in the previous

case-by-case decisionmaking, rather than

to the objections to the guidelines voiced

during the Congressional debates on the

PCRA. See Geraghty, 579 F.2d at nn. 82 &

83. The House and Senate Subcommittees

enjoyed a "working relationship" with the

Parole Board during the formulation of

this legislation, and the Conference Com-

(footnote continued)

-App. B22-

Although the conferees eliminated the

language in the Senate Report characteriz-

ing parole as "an extension of the senten-

cing process," compare S.Rep. 94-233,

Supra, at 337 with H.R.Conf.Rep. No. 94-

838, supra, at 352, they retained the Sen-

ate Report's description of the Bill as

"having the practical effect of balancing

differences in sentencing policies between

judges and courts.” Id. Determination of

the actual length of incarceration of an

offender was committed to the discretion

of the Parole Commission. Id. The Com-

mission was designated as the agency "re-

sponsible for keeping in prison those who

(footnote continued)

mittee was surely aware of the guidelines

as then employed by the Parole Board.

H.R.Conf.Rep. No. 94-838, Supra, at 352.

Under these circumstances, we find it dif-

ficult to avoid construing the absence of

express disapproval of any particular fea-

ture of the then current guidelines as a

form of tacit approval.

-App. B23-

because of the need for accountability to

society or for the protection of society

must be retained in prison." Id. ae: 2a

the job of the Commission to identify

those individuals who are ready to be

responsible citizens. Id. The informa-

tion that the Commission must consider in

performing its task was specified -- a

list identical to that included in the

[13] but the weight to be

House Bill

accorded any particular piece of -infor-

mation was a judgment solely within the

province of the commission. Id. at 360.

The Commission's discretionary power to

make parole decisions was limited, how-

ever, by permitting decisions outside the

guidelines only when there is good cause

to do so. The Conference Report inter-

Preted good cause as “substantial reason"

and “only those grounds put forward by the

Commission in good faith and which are not

“~App. B24-

arbitrary, irrational, unreasonable, ir-

relevant or capricious." Id. at 359. The

Conferees further directed that "[i]f de-

cision to go above or below parole guide-

lines are frequent, the Commission should

re-evaluate its guidelines.” Id. at 360.

In any case in which the decision is

outside the guidelines the Commission must

provide the prisoner with a written expla-

nation setting forth with particularity

the reasons, including a summary of the

information relied upon. 18 U.S.C.

§4206(c). In addition, the hearing exam-

iners, when feasible, must advise the

prisoner of what he could do to enhance

his prospects for parole. 18 U.S.C.

§4208(g). These latter two requirements

of the Conference Bill (PCRA) are similar

[13] s-Fkit* 18 U.S.C. §4207, set forth

at page 9, supra, with §4206 of the

House Bill, quoted at page 280 supra.

-App. B25-

to those found in the House Bill, but the

conference Report added this significant

caveat:

"The Conferees intend that this re-

guirement for advice on future parole

Prospects be narrowly construed. In

Situations in which the prisoner has

been convicted of a serious offense,

there may well be nothing that he can

do to enhance his parole potential un-

til service of some period of time has

been completed. Moreover, promises of

parole should not be used to coerce

inmate participation in institutional

programming.

H.R.Conf.Rep. No. 94-838, at 362.

The Conference Bill passed the Senate

On March 2, 1979, and the House on March

3, 1976. [1976] U.S.Code Cong. & Ad.News

335.

-~App. B26-

III. THE GUIDELINES

(14]

A. Origin

In 1971, the research staff of the Na-

tional Counsel on Crime and Delinquency

working in conjunction with the United

States Board of Parole (hereinafter refer-

(14) Defendants have argued that the re-

search project from which the original

guidelines were developed is not relevant

to the question of whether the guidelines

are valid under the PCRA. We believe, how-

ever, that an examination of the develop-

ment of the guidelines serves the limited

Purpose of elucidating the policies the

Parole Commission intended to implement by

adoption of the guidelines. If these poli-

cies are indeed effectuated by the guide-

lines, it is relevant to consider whether

Or not they comport with the policies em-

bodied in the PCRA. However, the validity

of the research project itself, or even

whether the conclusions of the study could

legitimately be applied to actual parole

decisionmaking are not relevant questions

in this case. Therefore, Plaintiffs' Ex-

hibits Numbers 26-46 and 55-61, which con-

cern a 1972 and 1973 parole background

Study, and on which we previously reserved

Our ruling, are admitted into evidence for

the limited purpose of clarifying the Pa-

role Commission's policies underlying the

guidelines.

red to as the "Parole Board", began an ex-

tensive study of parole decision-making.

One portion of the project involved an ex-

amination of parole decisions in Youth

Correction Act cases!15] (hereinafter re-

ferred to as "“"YCA") to determine if cer-

tain factors -- offense severity, parole

prognosis, institutional program partici-

pation and institutional discipline --

could predict parole decision-making.

) (16)

(Transcript at 11-12. One of the

conclusions of the project was that of-

{15} 18 U.S.C. §§5005 to 5026. A sentence

under the YCA has no minimum and a maximum

of six years. Id. §§5010 & 5017. Offen-

ders committed under the YCA provisions

are immediately eligible for parole. Id.

§5017(a). The YCA is not applicable if

the court finds that the offender would

not derive benefit from “treatment,” de-

Signed to correct the antisocial tenden-

cies of youth offenders. Id. §§5010 &

5016(f£).

[16] Hereinafter, the trial transcript

will be cited as "Tr."

“App. B28-

fense severity and parole prognosis rat-

ings made by members of the Youth Correc-

tions Division of the Parole Board could

Predict the actual decisions made at ini-

[17] (Tr. at

tial hearings in YCA cases.

12; Plaintiff's Exhibit 28, P.Hoffman,

Parole Selection Practice: Two Feedback

Methods, at 71 (unpublished doctoral dis-

sertation)). /18]

The study also found that ratings as-

Signed to institutional discipline were

Predictive of YCA decisions at review

hearings. (Tr. at 12).

Based on the results of this study, the

Parole Board structured its policy for fu-

ture parole decisionmaking around the two

factors of offense severity and risk of

(17) The initial hearing in a YCA case is

generally held within three to four months

of commitment.

[18] Hereinafter, exhibits introduced at

trial will be cited as "Plaintiffs' Ex.

No." or "Defendants' Ex.No."

“-App. B29-

recidivism (Parole prognosis). (Wilkins

Deposition at 89, 98-100; Hoffman Deposi-

tion at 125). The Parole Board, however,

determined to utilize objective measures

of offense severity and statistical pre-

dictors of parole prognosis rather than

ratings based on subjective, individualiz-

ed judgments made on a case-by-case ba-

(19)

Sis. (Hoffman Deposition at 125.)

These objective measures would then be

applied to the particular facts of each

parole case, (20!

[19] The assessments made in the YCA

study, in contrast, reflected the subjec-

tive viewpoints of the Parole Board member

as he considered each individual case.

(Hoffman Deposition at 122-23.) Dr. Peter

Hoffman, who conducted the YCA study, has

expressed the opinion that the objective

measures exhibit a strong correlation to

the subjective judgments recorded in the

YCA study. (Hoffman Deposition at 123-

24.)

[20] Contemporaneously with the initial

promulgation of the parole guidelines, the

(footnote continued)

“App. B30-

On November 19, 1973, the Parole Board

issued its first set of parole policy

guidelines. 28 C.F.R. §2.52, as amended 38

Fed.Reg. 31942 et seq. (Nov. 19, 1973).

The format was substantially the same as

the guidelines currently in use. On May

12, 1976, two days before the PCRA went

into effect, the Parole Board published in

the Federal Register a set of emergency

regulations, including parole guidelines,

to implement the PCRA. 41 Fed.Reg. 19326

(footnote continued)

Parole Board was in the process of admin-

istratively reorganizing into five re-

gions, 38 Fed.Reg. 26652 (Sept. 24, 1973);

delegating to two-member panels of hearing

examiners the power to make tentative pa-

role decisions, 28 C.F.R. §2.13, 38 Fed.

Reg. 26653 (Sept. 23, 1973); and estab-

lishing a two-stage administrative appeal

Procedure, 28 C.F.R. §§2.20-2.21, as

amended 38 Fed.Reg. 26654 (Sept. 23,

T97TS}. Objective measures of determining

offense severity and parole prognosis

would limit the subjective judgments of

the individual hearing examiners and as-

Sist in maintaining a consistent parole

policy throughout the regions. (See Hoff-

man Deposition at 125.)

-App. B3l-

et seq. (May 12, 1976). The Board also

published a notice of proposed rulemaking

and invited public comment on the emergen-

cy regulations. 41 Fed.Reg. 19341 (May

12, 1976). After opportunity for public

comment on the proposed regulations, the

Commission published a set of final rules,

including guidelines, on September 3,

1976. 41 Fed.Reg. 37316 et seq. (Sept. 3,

1976). The guidelines have been amended

numerous times in the intervening years,

making various refinements to the system.

B. Operation

The guidelines consist of two scales

which together determine the range of

"customary total time" an inmate must or-

dinarily serve before parole will be

granted. The first case -- the “offense

severity scale“ -- categorizes a compre-

hensive list of federal crimes into seven

-App. B32-

groupings, ranging from "Low" to “Mode-

» (21) The offenses

rate” to ‘Greatest II.

are ranked without regard to the maximum-

minimum penalties set by Congress. For

each level of severity, the “offense se-

verity scale" lists four ranges of “cus-

tomary total time." See Appendix I.

The second scale, known as the “salient

factor scale," measures parole prognosis.

The salient factor score is the sum of

points assigned by the Commission to seven

items in the inmate's background. Five of

these items deal with previous criminali-

ty, one considers opiate dependence, and

one considers recent employment or school

attendance. See Appendix II. In theory,

the higher the score, the lower the proba-

bility of recidivism will be. A clinical

evaluation of risk, however, may override

[21] Aggravating circumstances increase

the severity of the rating.

“App. B33-

the salient factor score. 28 C.F.R.

§2.20(e).

After determining the offense severity

and calculating the salient factor score

the Commission places the particular in-

mate's score and severity rating on a

grid, and thus arrives at the customary

total time to be served before release.

The customary total time has no relation-

ship to the sentence actually imposed on

the inmate, although no inmate can be de-

tained beyond the maximum term set by the

court or released before any minimum term

the sentencing judge might designate. (Tr.

at 48.) Furthermore, the guidelines are

designed for cases with good institutional

adjustment and program progress. 28 C.F.R.

§2.20(b). Substantial observance of in-

Stitutional rules is a threshold require-

ment for consideration for parole. 18

U.S.C. §4206(a).

The regulations specifically designate

the “customary total time” ranges as

"merely guidelines." "Where the circun-

stances warrant, decisions outside of the

guidelines (either above or below) may te

rendered." 28 C.F.R. §2.20(c). According

to the Commission's own statistics (Plain-

tiffs' Ex. No. 24, United States Parole

Commission Research Unit, Report 18: Work-

load and Decision Trends 10/74-9/77

(December 1977); Plaintiffs‘ Ex. No. 25,

United States Parole Commission Research

Unit, Report 24: Workload and Decision

Trends, Fiscal Years 1978-1980 (January

1981), approximately eighty percent of the

decisions at initial hearings fall within

-Aprp. B35-

the customary total time recommended by

the guidelines. !22!

IV. DISCUSSION

A. Validity of the Guidelines

Plaintiffs attack the guidelines on the

[22] A decision to deny parole and con-

tinue to expiration because a prisoner's

sentence is too short to allow him to

serve the customary total time is counted

by the Commission as a decision within the

guidelines. (Tr. at 56.)

The question of whether the guidelines

are mechanically applied is not at issue

in this case. We are concerned only with

the facial validity of the regulations.

We agree, however, with the court in

Garcia v. Neagles, 660 F.2d 983, 991 (4th

Cir. 1981), cert. denied, i

102 S.Ct. 1023 (1982), that given the

Clear directive of the Conference Report

to re-evaluate the guidelines when deci-

Sions outside the guidelines are too fre-

quent, H.R.Conf.Rep. No. 94-838, supra, at

360, less than 80% conformity with the

guidelines may well violate the statute.

Although we have referred to Plain-

tiffs' Exhibit Nos. 24 and 25, they relate

to the application issue and are irrele-

vant to this action. Nevertheless, we ad-

mit these exhibits as well as Exhibits 2l-

23, on which we also reserved our ruling

at trial, for purpose of possible appeal.

ground that they violate the PCRA in the

following particulars:

First, rehabilitation and institutional

behavior are not afforded any signifi-

cant weight in the decision to grant

parole; [23]

Second, the Commission may disregard the

sentence actually imposed; and

Last, the Commission has devised its own

System of measuring accountability. [24]

[23] Plaintiffs raise as a separate and

distinct ground for invalidating the

guidelines another issue, that is, that

under the guidelines institutional behav-

ior operates only as a negative factor in

the parole decision. We think that this

issue is subsumed within the more general

operation of whether the guidelines imper-

missibly exclude meaningful consideration

of rehabilitation and institutional per-

formance.

Defendants object that Plaintiffs lack

Standing to challenge the treatment of

institutional behavior under the guide-

lines. We find this position to be with-

Out merit.

[24] Although we have chosen to treat

this question as a separate issue, it is

obviously related to the second issue, the

freedom the Commission has to disregard

actual sentence length.

-App. B37-

1. Rehabilitation and Institutional

Performance

It is axiomatic that in considering the

validity of any regulation promulgated un-

der a statute, one must first look to the

language of the statute itself. Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723,

756 (1975). Our initial analysis, there-

fore, must juxtapose the Plaintiffs' con-

tentions against the pertinent provisions

of the PCRA.

Plaintiffs claim that in the PCRA.Con-

gress “has explicitly directed” that reha-

bilitation and institutional behavior "re-

main central in parole decisionmaking.”

(Plaintiffs' Post-Trial Brief at 29.) They

assert that the statutory language is not

consonant with the elimination of rehabil-

itation as the primary focal point in the

parole process, and does not authorize the

Commission to consider institutional be-

havior only as a negative factor.

“App. B38-

We cannot agree, however, that: the Sta-

tute on its face places its primary empha-

Sis on the rehabilitation of the inmate.

To the contrary. Section 4206 mentions

Several factors that must be included in

the review of every prisoner's case: sub-

Stantial adherence to the rules of the in-

Stitution, the nature and circumstances of

the offense, the history and characteris-

tics of the prisoner. Thus, "Section 4206

does not state that good institutional ad-

justment is a major factor in determining

whether to Parole, but rather Only one of

many factors." Hayward v. United States

Parole Commission, 659 F.2d 857, 86) (8th

Cir. 1981), cert. denied, U.S. ’

102 S.Ct. 199) (1982).

Furthermore, the Only explicit réefer-

ence to institutional] behavior in the sta-

tute is phrased in terms of a prerequisite

to parole, thet is, "LiJf an eligible pri-

~App. B39-

soner has substantially observed the rules

of the institution .. . 18 U.S.C.

§4206(a) (emphasis added). The language

would appear to sanction the use of insti-

tutional performance as a negative factor.

We hesitate to find, however, that the

Statute excludes the possibility of a

positive use for the inmate's institution-

al record. Section 4207 requires the Com-

mission to consider, inter alia, “reports

and recommendations which the staff of the

facility . . . may make." 18 U.S.C.

§4207(1). Reading this section of the

Statute together with §4206, therefore, we

think that the inmate's institutional be-

havior is part of the “history and charac-

teristics of the prisoner” that must be

reviewed by the Commission.

Plaintiff argues that since positive

information regarding institutional behav-

ior is not taken into account in calculat-

“App. B40-

ing the “salient factor Score," and the

initial hearing is held within 120 days of

incarceration, 28 C.F.R. §2.12(a), the in-

mate's record at the institution and his

Progress toward rehabilitation have a ne-

gligible impact. See Moore vy. Nelson, 611

P.2d 434, 438 n.8 (24 Cir. 1979). We

note, however, that a clinica] evaluation

of risk may override the salient factor

Score, 28 C.F.R. §2.20(e), and that the

Commission may Gepart from the guidelines

when there is "good cause" to do so. 18

U.S.C. §4206(c). Moreover, at subsequent

hearings, “significant developments or

Changes in the Prisoner's status" are

taken into consideration. 28 C.P.Rs

§2.14(a). Under 28 C.F.R. §2.14(a)(2)

(1i), @ presumptive release Gate may be

“App. B4l-

advanced for “superior program achieve-

ment.” 1a, (29! See also 28 C.F.R. $2.60.

While we think that the role played by

institutional factors under the guidelines

is entirely consistent with the language

of the PCRA on its face, we recognize that

regulations such as these may fulfill the

letter of the legislation, yet simultane-

ously contravene the spirit of the stat-

ute. Holy Trinity Church vw. United

States, 143 U.S. 457, 459 (1892). A care-

ful analysis of the legislative history is

in order, therefore, to remove any linger-

ing doubts about the validity of the

guidelines in regard to this issue.

[25] The regulations governing the ini-

tial and interim hearings and the provi-

Sion for “superior program achievement”

technically are not part of the guidelines

challenged by Plaintiffs. Nevertheless,

we agree with the Defendants that the

guidelines must be examined in the context

of the entire parole system in order to

determine if the regulations violate the

PCRA.

“App. B42-

We have previously set forth the sequences

of legislative reports and summarized the

Significant reports accompanying them. |26!]

The entire tenor of the original legisla-

tion passed by the House, and the report

accompanying the bill, indicates an empha-

Sis on the concerns of the individual in-

mate. Discussing the information that

must be considered by the Commission, the

House Report .speaks in terms of "the

efforts ... to improve his [the in-

mate's] education, skills, or personal

attributes. ..”" H.R.Rep. 94-184, Supra,

at 6 (emphasis added). See page 280,

Supra. In addition, under the House

version of the bill, if parole was denied,

__—

[26] Although only the Conference Report

Girectly expresses the intent of Congress

in regard to the PCRA, the conferees did

. not write in a vacuum. Perusal of the

House and Senate Reports is helpful,

therefore, in our attempt to ascertain the

Proper interpretation of the Conference

Report itself.

“App. B43-

the prisoner was to be advised of what he

could do to improve his prospects for

parole. H.R.Rep. No. 94-184, supra, at 7.

See page 281, supra. Clearly, the House

Bill contemplated rehabilitation as

playing a significant role in the parole

process.

In the Senate Report, the focus of the

legislators shifted. Although we do not

think that rehabilitation and institution-

al progress were eliminated as factcrs by

the Senate Subcommittee, the emphatic lan-

guage of the House Report does not appear

(27]

in the Senate Report. Instead, the

Senate Report all but endorsed the guide-

lines as developed by the Parole Board.

[27] In the Senate Report, the inmate's

institutional behavior and participation

in institutional programs are merely men-

tioned as among those items the Bureau of

Prisons would include in its summary of

the inmate's background. S.Rep. No. 94-

369, supra, at 344. See page 281 supra.

“App. B44-

Although the bill that came out of the

House-Senate Conference effected a compro-

mise between the respective positions of

the two houses, in our view the Conference

Report embraces the basic approach taken

by the Senate. See page 282, Supra. The

guidelines were retained as the mainstay

of the legislation. More importantly, the

formulation of the guidelines was commit-

ted to the Commission. Congress expressly

declined to write into the stsetute the

precise method by which parole performance

would be predicted because it was the in-

tent of the Conferees “to encourage the

newly created Parole Commission to con-

tinue to refine both the criteria which

are used and the means for obtaining the

information used therein." H.R.Conf.Rep.

No. 94-838, supra, at 359. Moreover,

while the PCRA incorporated the informa-

tion which the House Bill required to be

“App. B45-

considered in each parole decision, the

Conferees pointedly stated that "the

weight assigned to individual factors (in

parole decision-making) is solely within

the province of the (commission's) broad

Giscretion.” Id. at 360 (emphasis added).

Assessing the same issue that we now face,

the court in Wilden v. Fields, 510 F.Supp.

1295 (W.D.Wis. 1981), found this expres-

Sion of legislative intent conclusive evi-

dence of the validity of the guidelines.

Id. at 1305. See also Shahid v. Crawford,

3999 F.2d 666, 670 (Sth Cir. 1979) (Con-

gress intended Commission, not courts, to

decide significance of particular infor-

mation about prisoners). We agree. We

note, in addition, the limiting construc-

tion placed by the Conferees on the provi-

Sion adopted from the House Bil] directing

the hearing examiners to advise the pri-

soner of steps he could take to enhance

“App. B46-

his parole prospects. The Conferees re-

cognized that in many situations the in-

mate could do little, if anything, to im-

prove his parole status. H.R.Conf.Rep.

No. 94-838, supra, at 362. See page 283

supra. We interpret the passage of the

Conference Repert as an implicit acknow-

ledgement that positive institutional be-

havior may have little impact on the

(28)

parole decision. See also H.R.Conf.

[28] Plaintiffs point to a study of re-

Cidivism by Howard Bloom as evidence that

a statistical predictor can include fac-

tors which change during imprisonment.

(Plaintiffs' Ex. No. 54, Bloom, Evaluating

Human Service and Correctional Programs by

Modeling the Timing of Recidivism, 8 Soc.

Methods & Research 179 (Nov. 1979). Such

evidence is irrelevant. It does not mat-

ter if we think that parole prognosis

should be evaluated in a different manner.

The sole question here is whether the

method used by the Commission comports

with the dictates of the statute.

We note that Plaintiffs’ Ex. Nos. 47-

53, like Plaintiffs’ Ex. No. 54, are a

series of articles and reports, and are

likewise irrelevant to the issues at bar.

Regardless, these exhibits, on which we

had reserved our ruling, are admitted for

the purpose of possible appeal.

“App. B47-

Rep. No. 94-838, supra, at 357-360 (analy-

sis of §4206 does not mention rehabilita-

tion).

2. Sentence Length

Plaintiffs complain that the guidelines

are invalid because they do not provide

for consideration of sentence length in

the parole decision-making process. Defen-

Gants counter, and we must agree, that the

statute itself makes no explicit mention

of the sentence actually imposed as a fac-

tor the Commission must consider. Further-

more, we find it difficult to construe the

general criteria set forth in Section 4206

to encompass sentence length. The twin

conclusions that release of a prisoner

would not “depreciate the seriousness of

his offense or promote disrespect for the

law," and would not “jeopardize the public

welfare" are reached by examining “the

“App. B48-

mature and circumstances of the offense"

and "the history and characteristics of

the prisoner." 18 U.S.C. §4206. Thus,

the Commission must review the character

of the offense, not the sentence imposed

for that offense. Arguably, “the history

and characteristics of the prisoner,” 18

U.S.C. §42069a), could include the sen-

tence he is currently serving. When Con-

gress expressly itemized the information

that the Commission is required to consid-

er, however, it failed to specify sentence

length. Instead, Congress included in the

list “recommendations regarding parole. .

by the sentencing judge." 18 U.S.C.

§4207(4).

Nor can we glean from the legislative

history an intention to make sentence

length the starting point for the evalua-

tion performed by the Commission. Sentence

length was controlling under the House

“App. B49-

Bill, as we have seen, but that approach

was rejected by the Conference Committee.

Both the Senate Report and the Conference

Report speak of the release decision as

One "shared" by the three branches of

government. See S.Rep. No. 94-369, supra,

at 336; H.R.Conf.Rep. No. 94-838, Supra,

at 351. Significantly, both Reports rec-

ognize that "(t]he final determinaticn of

precisely how much time an offender must

serve is made by the parole authority,"

S.Rep. No. 94-369, supra, at 337; H.R.

Conf. Rep. No. 94-838, supra, at 352. The

Reports also describe the functions per-

formed by the judicial and legislative

branches in the scheme: the court sets a

minimum and maximum term, within a range

of discretion fixed by Ceeibeeiis. Id. at

337 & 352. Nowhere in either version is

there an indication that the parole autho-

rity must do more than operate within the

-App. B50-

constraints provided by the judicial and

legislative branches. See Garcia v.

Neagle, 660 F.2d 983, 991 (4th Cir. 1981),

cert. denied, 102 S.Ct. 1023 (1982) (sen-

tence serves to define outer limits of

parole eligibility). To the contrary, the

analysis of Section 4206 in the Conference

Report states:

It is the intent of the Conferees that

the Par@le Commission make certain

judgments pursuant to this section, and

that the substance of those judgments

is committed to the discretion of the

Commission.

H.R.Cponf.Rep. No. 94-838, supra, at 358.

(emphasis added). The Conference Report

then continues

Determination of just punishment are

part of the parole process, and these

determinations cannot be easily made

because they require an even-handed

sense of justice ... it is important

for the parole process to achieve an

aura of fairness by basing determina-

tions of just punishment on comparable

eriods of incarceration for similar

offenses comm

cumstances.

-App. B5l-

Id. (emphasis added). A finding that the

parole decision process must use the indi-

vidual sentence length as its point of em-

barkation would frustrate this direc-

[29]

tive. Moreover, the Conference Report

instructs "(t]he parole decision-makers”

to “weigh the concepts of general and spe-

cial deterrence, retribution and punish-

ment, all of which are matters of judgment

[29] Dr. Peter Hoffman has expressed the

view that sentence length is factored into

the parole decision as an indicator of un-

usual circumstances. He explains that,

If you have a case where you have an

unusually long [sentence] .. . you

probably would examine the record to

look for an aggravating factor that

resulted in the imposition of what

appears to be an extremely long sen-

tence .. . then you could use that

aggravating factor as a reason for

gOing above the guidelines .. . The

examiners, because they have to assess

the limits of the discretion, they

will be aware of the sentence length.

(Tr. at 49.) The process is the same, of

course, for an unusually light sentence.

(Tr. at 50.)

-App. B52-

»- »« »« " in reaching their determination

of just punishment. Id. No mention is

made of the assessment of these concepts

made by the court in arriving at a sen-

tence. It is the Commission's own judg-

ment that is called for, because senten-

cing and parole are separate, although re-

lated, processes.

Our view of the interaction between

sentencing and parole intended by Congress

is one apparently shared by the Supreme

Court. In United States v. Addonizio, 442

U.S. 178 (1979), Justice Stevens comment-

ed,

"The decision as to when a lawfully

sentenced defendant shall actually be

released has been committed by Con-

gress, 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 sen-

tencing practices of individual judges.

Id. at 189. See also Garcia v. Neagle,

-~App. B5S3-

660 F.2d 983, 990-91 (4th Cir. 1981),

cert. denied, U.S. s 482 8.6. 2082

(1982); Priore v. Nelson, 626 F.2d 211 (2d

Cir. 1980); Hawkins v. United States

Parole Commission, 51ll F.Supp. 460, 461

(E.D.Va. 1981), aff'd 679 F.2d 881 (4th

Cir. 1982); Wilden v. Fields, 510 F.Supp.

1295, 1300-01 (W.D.Wis. 1981).

Thus, although we agree with other

courts and commentators that the Commis-

Sion might do well to give more deference

to the sentence pronounced by the court,

we do not think that deference is a re-

quirement imposed by the pcra, [39)

[30] The Addonizio decision did not pass

upon the validity of the parole guide-

lines. The Supreme Court considered the

guidelines in the context of its ruling

that a prisoner cannot attack his sentence

pursuant to 28 U.S.C. §2255 on the basis

that a postsentencing change in the Conm-

mission's policies frustrated the subject-

ive intent of the sentencing judge.

Several other Supreme Court cases have

analyzed the interaction between senten-

(footnote continued)

“App. B54-

3. Accountability

Plaintiffs' next argument is the logi-

cal corollary of their attack on the

ability of the Commission to disregard the

sentence actually imposed. Plaintiffs con-

tend that the guidelines constitute a sys-

tem of accountability unauthorized by the

PCRA. They argue that the "offense sever-

ity rating" represents the Commission's

Own judgment of the seriousness of the

offense and how much time the offender

should serve in prison, independent of the

sentence set by the court and the maximum

penalty designated by Congress.

(footnote continued)

cing and parole in the process of deciding

other issues. The comments made in these

cases have generally been in accord with

the position outlined in_Addonizio. See

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

(1577); Warden v. Marrero, 417 U.S. 653,

658-59 (1977); Bradley v. United States,

410 U.S. 605, 611 n.6 (1973); Morrissey v.

Brewer, 408 U.S. 471, 480 (1972).

-App. B55-

Plaintiffs' position, that Congress did

not sanction such independent judgments,

is contradicted by both the terms of the

Statute itself and the language of the

Conference Report.

The statute clearly contemplates judg-

ments regarding offense severity when it

directs the Commission to determine “that

release would not depreciate the serious-

ness of his offense or promote disrespect

for the law. . ." based upon inter alia,

"consideration of the nature and circum-

stances of the offense. . ." 18 U.S.C.

§4206(a). A glance at the Conference Re-

port, however, more vividly exposes the

intention of the drafters of the PCRA to

entrust the Commission with the task of

assessing accountability in making its re-

lease decision. Repeatedly, the Confer-

ence Report stresses this aspect of the

Commission's job:

“App. B56-

Nearly all men and women sent to prison

as law breakers are eventually released,

and the decision as to when they are re-

leased is shared by the three branches

of government . . . The sentences of

nearly all offenders include minimum and

maximum terms, ordinarily set by the

sentencing court within a range of dis-

cretion provided by statute. The final

determination of precisely how much time

an offender might serve is made by the

parole authority .. . In the first in-

Stance, parole has the practical effect

of balancing differences in sentencing

policies and practices between judges

and courts in a system that is as wide

and diverse as the Federal criminal jus-

tice system. In performing this func-

tion, the parole authority must have in

range of time for an offense which will

satisfy the legitimate needs of society

to hold the offender accountable for his

Own acts. . . Once sentence has been

imposed, parole is the agency respon-

sible for keeping in prison those who

because of the need for accountability

to society or for the protection of

society must be retained in prison...

H.R.Conf.Rep. No. 94-838, supra, at 351-52

(emphasis added).

It is the intent of the Conferees that

the Parole Commission, in making each

parole determination, shall recognize and

make a determination as to the reiative

pect for the law. It is the view of the

Conferees that the U.S. Parole Commission

is joined in purpose by the Courts, the

Congress and other Executive agencies in

a continuing effort to instill respect

for the law. The Parole Commission

efforts in this regard are fundamental.

Id. at 358 (emphasis added).

In the face of these expressions of

legislative intent, our conclusion is ob-

vious. The PCRA authorizes the Commission

to exercise its own independent judgment

in measuring the severity of an offense

and the need for accountability as a re-

sult thereof. (311

B. Constitutionality of the PCRA

Plaintiffs challenge to the constitu-

tionality of the PCRA rests on two

{31) A few exhibits proffered by Plain-

tiffs during the trial on which we with-

held our ruling remain to be discussed.

Plaintiffs' Ex. Nos. 63-68, which are

evaluations of the reorganization of the

Parole Board, are irrelevant and are not

admitted. Plaintiffs' Ex.No. 71, is ad-

mitted for the purpose of appeal. Plain-

tiffs' Ex. Nos. 72-74, depositions of Bar-

bara Stone-Meierhoefer, Leslie T. Wilkins,

and Peter Hoffman, are admitted.

“App. B58-

grounds, both of which rely heavily on

dicta appearing in the Third Circuit's

GERAGHTY opinion. Pirst, Plaintiffs as-

sert that a statute authorizing the Com-

mission to focus consideration almost ex-

Cclusively on deterrence and retribution,

"the very factors that are available to

the sentencing judge,” without giving

weight to the prior determination of the

judicial branch, impermissibly interferes

with the province of the judiciary. See,

Geraghty, 579 F.2d at 261. Second, Plain-

tiffs argue that the PCRA violates the se-

paration of powers doctrine by effectively

delegating the legislative function of

"redrafting” criminal penalties without

adequate standards. Id. at 263. We will

consider each of these contentions in

turn.

-App. B59-

l. Impermissible Interference with the

Judiciary

The charge that the PCRA unconstitution-

ally authorizes the Commission to usurp

the sentencing power of the judiciary has

been effectively answered by the observa-

tions of the district court in Joost v.

United States Parole Commission, 535

F.Supp. 71 (D.Kan. 1982). We find the

r@asoning of District Judge Rogers on this

issue so cogent that we reproduce a por-

tion of it here:

At the outset, we note that there is

no constitutional provision which expli-

citly provides or has been interpreted

as providing that a judge must set or be

able to predict the date of a defen-

dant's actual release from prison when-

ever that might occur prior to the maxi-

mum term imposed. Congress has tradi-

tionally defined what behavior is crimi-

nal and prescribed the range of punish-

ments to be imposed for such crimes.

The sentencing court has traditionally

been delegated the authority to select

-App. B60-

from the prescribed range the most

appropriate sentence on consideration of

the individual defendant and circum-

stances. To this day, the court desig-

nates in the judgment and commitment or-

der the maximum term an individual may

be required to serve for his crime.

Furthermore, by selecting one of the

statutory sentencing options setting the

time of parole eligibility the court

effectively designates the minimum term

of imprisonment. The court then commits

the defendant to the custody of the

Attorney General for the time of the

sentence. The sentence is executed by

the Attorney General and his delegates

within the executive branch of govern-

ment. As part of the responsibility to

execute sentences, Congress has permit-

ted executive authorities to ameliorate

punishment by awarding statutory good

time. Another traditional method of

amelioration of punishment is executive

pardon. Parole is technically nothing

more nor less than another form of

amelioration or mitigation of punishment

authorized and defined by Congress and

carried out by an executive agency. The

-App. B6l-

PCRA, effective in March, 1976, has not

Substantially altered this overall

scheme. We conclude that no function

entrusted to the judiciary by the United

States Constitution has been delegated

to the United States Parole Commission.

Id. at 73-74.

Thus, the parole decision is no more

within the province of the judiciary than

is the assignment of an inmate to a par-

ticular institution for incarceration or

to a security classification within the

institution. id; at 74. The sentencing

judge may make recommendations about such

matters, and under the PCRA the Commission

is bound to consider his recommendation

regarding parole, 18 U.S.C. §4207, but the

judge has no enforceable expectation that

his wishes will be followed. Id.

We endorse the Joost, opinion not only

because we agree with the rationale pro-

pounded therein, but also because we be-

-App. B62-

lieve that it comports with the position

espoused by the Supreme Court in its most

recent pronouncements. In United States

v. Addonizio, 442 U.S. 178 (1979), the

Court compared the roles of the Commission

and the courts:

The decision as to when a lawfully sen-

tenced defendant shall actually be re-

leased has been committed by Congress,

with certain limitations, to the discre-

tion of the Parole Commission . . . The

authority of sentencing judges to select

Precise release dates 1s, by contrast

narrowly limited: the judge may select

an early parole date, but that guaran-

tees only that the defendant will be

considered at that time by the Parole

Commission . . . the judge has no en-

forceable expectation with respect to

the actual release of a sentenced de-

Féndant short Of his statutory term. .

the actual [release] decision is not his

to make, either at the time of sentenc-

ing or later...

Id. at 189-90. See also United States v.

Grayson, 438 U.S. 41, 47 (1977). A foot-

note to this passage reinforces the sep-

aration drawn by the Court between sen-

tencing and parole in even more striking

-App. B63-

terms. In footnote 15, Justice Stevens

remarked that under 18 U.S.C. §3651 a

trial judge is precluded from usurping the

parole function by splitting a lengthy

sentence between a stated period of pro-

bation and imprisonment. Addonizio, 442

U.S. at 190 n.15. Furthermore, the scheme

outlined by the court in Addonizio is con-

Sistent with previous opinions in which

the Supreme Court distinguished release

decisions from parole eligibility deter-

minations. The later is part of punish-

ment and the sentencing function; the for-

mer is made only after sentence has been

entered and prosecution has terminated.

Bradley v. United States, 410 U.S. 605,

6ll n.6 (1973). See also Warden vy.

Marrero, 417 U.S. 653, 658-59 (1974);

Morissey v. Brewer, 408 U.S. 471, 480

(1972).

“App. B64-

Based on the foregoing principles, it

follows that if the authority of the

judiciary is limited to selecting the

Outer boundaries of the time to be served,

and the parole function cannot manipulate

the maximum and minimum sentence in any

way, the Commission does not encroach upon

the judicial functions, even though it may

consider the same factors in reaching a

parole decision. Other courts are in

accord with our conclusion that under the

PCRA the Commission cannot uSurp power

which the judiciary does not possess. See

Priore v. Nelson, 625 F.2d 211 (2d cir.

1980); Moore v. Nelson, 611 F.2d 434, 439

(2d cir. 1979); Hawkins v. United States

Parole Commission, 51ll F.Supp. 460, 461-62

(E.D.Va. 1982), aff'd 679 F.2d 881 (4th

Cir. 1982) (relying on Addonizio); Wilden

v. Pields, 510 F.Supp. 1295, 1303 (W.D.

Wis. 1981) (citing Moore).

-App. B6é5-

We believe that our analysis is in

harmony with the current interpretation of

the separation of powers doctrine. In a

recent discussion on the subject, the

Supreme Court identified the proper in-

quiry as the extent to which the challeng-

ed statute prevents a branch of government

from accomplishing its constitutionally

assigned functions. Nixon v. Administra-

tor of General Services, 433 U.S. 425, 443

(1977). As we have previously stated, the

powers delegated to the Commission cannot

interfere with the power of the court to

designate the actual sentence, or the date

of parole eligibility.

2. Unconstitutional Delegation of

Legislative Function

Plaintiffs' argument that the PCRA per-

mits the Commission to "“redraft" federal

criminal penalties is misplaced. It is

Clear from the foregoing analysis of the

-App. B66-

interaction between the statutory maximum,

the sentence imposed, and the parole re-

lease date, that the guidelines do not

perform any such function. The federal

Criminal statutes, on the one hand, fix

the maximum penalties for the crimes they

define. The guidelines, on the other

hand, operate within the limits set by the

Statute, as well as within the confines of

the sentence. Moreover, as Defendants

point out, the guidelines specify time

ranges for the typical length of imprison-

ment before parole, as opposed to maximum

time periods set by statute, for various

combinations of offense severity and

offender characteristics. It is true that

the severity ratings do not necessarily

track the statutory sentence lengths, see

Geraghty, 579 F.2d at 262 n.115, but there

is no constitutional or statutory require-

ment that they do so. See Priore v. Nel-

-App. B67-

son, 626 F.2d 211 (2d Cir. 1980); Moore v.

Nelson, 611 F.2d 434, 439 (2d Cir. 1979);

Wilden v. Fields, 510 F.Supp. 1295,

1302-03 (W.D.Wis. 1981). See also Section

IV.A.3 Supra.

In view of this conclusion, we need not

reach the question of whether the stand-

ards contained in the PCRA are constitu-

tionally adequate. Nevertheless, in our

Opinion the statutory criteria enunciated

in 18 U.S.C. §4206 are sufficiently speci-

fic to withstand an attack on the ground

that the PCRA does not provide adequate

Standards to guide the Commission in the

exercise of its discretion. We note that

the Supreme Court has broadly interpreted

the power to delegate, and has declared

Statutes unconstitutional on this basis on

only two occasions. See Schechter Poultry

Corp. v. United States, 295 U.S. 495

(1935); Panama Refining Co. v. Ryan, 293

U.S. 388 (1935).

V. CONCLUSION

To summarize, based on the foreoging

findings of fact and our discussion there-

of, we make the following conclusions of

law:

First, the parole guidelines .and regula-

tions are a valid exercise of the Com-

mission's authority under the PCRA; and

Second, the PCRA does not violate the

Constitution of the United States.

October 29, 1982

R. Dixon Herman

United States District Judge

-App. B69-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-3593

GERAGHTY, JOHN M.., individually

and on behalf of a class

ADDITIONAL PLAINTIFFS:

VILLANTI, FRANK

FORD, NICOLA

us.

UNITED STATES PAROLE COMMISSION and

ATTORNEY GENERAL OF UNITED STATES and

SUPERINTENDENT, FEDERAL PRISON CAMP,

Montgomery, Pa.

John M. Geraghty, Appellant

(M.D. Pa. Civil No. 76-1467)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, and ALDISERT,

ADAMS, GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER and BECKER,

Circuit Judges, and RE, Chief Judge. °

The petition for rehearing filed by Appellant

Geraghty, et al. in the above entitled case having been

submitted to the judges who participated in the

decision of this court and to all other available circuit

judges of the circuit in regular active service, and no

Judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the

*Honorable Edward D. Re, Chief Judge of the United States Court of

International Trade, sitting by designation.

circuit in regular active service not having voted for

rehearing by the court in banc, the petition for

rehearing is denied.

Judge Adams would grant the petition for

rehearing.

BY THE COURT,

Ruggero J. Aldisert

Circuit Judge

DATED: October 28, 1983

Statement by Judge Adams sur the denial of the petition

for rehearing.

I dissent from the denial of rehearing in this case.

Without addressing the merits of the panel's

conclusions on the constitutionality of the Parole

Commission and Reorganization Act (PCRA) as applied.

I believe that the opinion, in key passages. is

inconsistent with prior decisional law of this Circuit

and should therefore be resolved by this Court as a

whole. In particular, the interpretation of the PCRA in

the opinion runs counter to the discussion in Geraghty

v. U.S. Parole Commission, 579 F.2d 238. 259 (3d Cir.

1978). The treatment by the earlier panel of the

constitutional issues raised by the Parole Commission's

assumption of traditional judicial functions was left

untouched by both the Supreme Court's vacatur of

Geraghty. 445 U.S. 338 (1980), as well as by its opinion

reversing this Court in United States v. Addonizio. 442

U.S. 178 (1979). In the latter, the Supreme Court

specifically limited its discussion to the collateral

habeas attack rather than to a direct constitutional

“App. C2-

challenge, as is present here. Equally significant, the

ruling in Geraghty was specifically reaffirmed just four

months ago inFormanv. McCall, 709 F.2d 852 (3d Cir.

1983).

Because of the disparity between these opinions of

this Court, I believe this case should be considered in

banc as required by the Internal Operating Procedures,

Chapter VIII C.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circutt

“App. C3-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

(TITLE OMITTED IN PRINTING)

JUDGMENT

This cause came on to be heard on the

record from the United States District

Court for the Middle District of Pennsyl-

vania and was argued by counsel August ll,

1983.

On consideration whereof, it is now

here ordered and adjudged by this Court

that the judgment of the said district

court, entered October 29, 1982, be, and

the same is hereby affirmed. Costs taxed

against appellants.

Attest:

/s/ Sally Mrvos

Clerk

October 6, 1983

-App. Dll-

STATUTES AND REGULATIONS INVOLVED

The Parole Commission and Reorganization Act,

18 U.S.C. 4201-4218, provides in pertinent part:

A. 18 U.S.C. 4203:

(a) The Commission * * * shall—

(1) promulgate rules and regulations

establishing guidelines for the powers enum-

erated in subsection (b) of this section and

such other rules and regulations as are

necessary to carry out a national parole

policy and the purposes of this chapter;

(b) The Commission * * * shall have the

power to—

(1) grant or deny an application or rec-

ommendation to parole any eligible prisoner;

(2) impose reasonable conditions on an

order granting parole;

(3) modify or revoke an order paroling

any eligible prisoner; * * *.

B. 18 U.S.C. 4205:

(a) Whenever confined and serving a definite

term or terms of more than one year, a prisoner

shall be eligible for release on parole after serv-

ing one-third of such term or terms or after serv-

ing ten years of a life sentence or of a sentence

of over thirty years, except to the extent other-

wise provided by law.

-App. El-

(b) Upon entering a judgment of conviction,

the court having jurisdiction to impose sentence,

when in its opinion the ends of justice and best

interest of the public require that the defendant

be sentenced to imprisonment for a term exceed-

ing one year, may (1) designate in the sentence

of imprisonment imposed a minimum term at the

expiration of which the prisoner shall become

eligible for parole, which term may be less than

but shall not be more than one-third of the maxi-

mum sentence imposed by the court, or (2) the

court may fix the maximum sentence of imprison-

ment to be served in which event the court may

specify that the prisoner may be released on

parole at such time as the Commission may de-

termine.

C. 18 U.S.C. 4206:

(a) If an eligible prisoner has substantially

observed the rules of the institution or institu-

tions to which he has been confined, and if the

Commission, upon consideration of the nature

and circumstances of the offense and the history

and characteristics of the prisoner, cletermines:

(1) that release would not clepreciate the

seriousness of his offense or promote dlisre-

spect for the law; and

(2) that release would not jeopardize the

public welfare:

subject to the provisions of subsections (b) and

-App. E2-

promulgated by the Commission pursuant to sec-

tion 4203(a) (1), such prisoner shall be released.

* * * * *

lease on parole notwithstanding the guidelines

referred to in subsection (a) of this section if it

determines there is good cause for so doing * * *.

(d) Any prisoner, serving a sentence of five

years or longer, who is not earlier released under

this section or any other applicable provision of

law, shall be released on parole after having

served two-thirds of each consecutive term or

terms, or after serving thirty years of each con-

secutive term or terms of more than forty-five

years including any life term, whichever is ear-

lier: Provided, however, That the Commission

shall not release such prisoner if it determines

that he has seriously or frequently violated insti-

tution rules and regulations or that there is a

reasonable probability that he will commit any

Federal, State, or loca] crime.

D. 18 U.S.C. 4207:

In making a determination under this chapter

(relating to release on parole) the Commission

shall consider, if available and relevant:

(1) reports and recommendations which

the staff of the facility in which such prison-

er is confined may make;

(2) official reports of the prisoner’s prior

criminal] record, including a report or record

of earlier probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the pris-

oner’s parole mace at the time of sentencing

by the sentencing judge; and

-App. E3-

(5) reports of physical, mental, or psychi-

atric examination of the offender.

There shall also be taken into consideration such :

additional relevant information concerning the

prisoner (including information submitted by the

prisoner) as may be reasonably available.

28 C.F.R. §2.20:

Sec. 2.20 PAROLING POLICY GUIDELINES; STATEMENT OF GENERAL POLICY.

(a) To establish s astionsl paroling policy, promote « sore consistent exercise

of discretion, and enable fairer and more equitable decisioo~makiang without

Temoving iodividual case consideration, the United States Parole Commission has

adopted guidelines for parole release consideration.

(b) These guidelines indicate the customary range of time to be served before

release for various combinations of offense (severity) and offender (parole

prognosis) characteristics. The time ranges specified by the guidelines are

established specifically for cases with good institutional adjustment and progras

progress.

decisions outside of the guidelines (either above or below) msy be rendered.

(dé) The guidelines contain examples of offense behaviors for each severity leve!.

However, especially mitigating or = et poy Be ise rticular case

may justify « cecision or # severity racing fereot froe that sted.

@) Am evaluation sheet containing a “salient factor score” serves as an aid is

termining the parole prognosis (potential risk of parole violation). However,

where circumstances warract, clinical ewaluation of risk may override this

predictive aid.

(f) Guidelines for reparole consideration are set forth at Sec. 2.21.

(g) The Commission shall review the guidelines, including the salient factor

score, Tiodically and may revise or modify them at any time as deemed

appropriate.

(h)(1) The Adult Guidelines shall apply to all offenders except as specified ic

paragraph (2).

(2) The Youth/NARA Guidelines will seply to any offender sentenced ander the

Youth Corrections Act, the Narcotic Reha iitation Act, or the Juvenile Justice

Act, aod to any other offender wno was less thao 22 years of age at the time che ‘

current offense was committec, regardless of sentence type. if an offedder was

less chan 18 years of age at the Cime of the current offense, such youthfulness

ehall, in iteelf, be considered as « mitigating factor.

(1) For criminal behavior committed while in confinement see $2.36 (Rescission

Cuidelines).

“App. E4-

GUIDELINES FOR DECISION-MAKING

(Guidelines for Decision-Making, Customary Total Time to be

Served before Release (including jail time) |

OFFENSE CHARACTERISTICS ‘OFFENDER CHARACTERISTICS: Parole Prognosis

Severity of Offense Behavior ' (Salienc Factor Score 1981)

' Very Good Good Fair Poor

* (10-8) (7-6) 5-4) (3-0)

‘ Adult Range

' <= 6-9 9-12 12-16

* gonchs monchs months gonchs

Category One eee en nnn eee -

(tormerty ‘low severity’! :

‘ (Youth Range)

" (€=6) (6-9) (9-12) (12-16)

" gonchs months gmonchs months

; Adult Range

~ 3-12 12-16 16-22

sonchs aontns Zonchs months

Category TR! een een n nena nn nnn nnnneneneeenneennneneeeeee --

foreer'y ‘'‘ow sedersete .

severity’! F (Youth Range)

* (<8) (8-12) (12-16) (16-20)

* gonths months monchs monchs

: Adult Range

" 10-14 118 18-24 24-32

* gonchs zonchs gonchs gonchs

Category Three il tetetetetetetetetetaeteteeeteted --- --

[fereer'y ‘eederete .

severity’! ; (Youth Range)

* (8-12 12-16) (16-20) (20-26)

* gonchs gonchs gonchs aonchs

: Adult Range

* 14-20 20-26 26-% a"

aonchs aonchs mzonchs aonchs

Category Four" eee nw wren neeweceneneceeee wo reeen------- --—

ferwer'y "Sigh severity’!

(Youth e)

12-16) 16-20) 20-26) 26-32)

* gonths aonchs zonchs aonchs

Adult Range

24-% 16-48 8-00 60-72

aonchs sonchs aonchs soncths

mee Five = «...«.-—sds_—sw:s® ‘eheeipmnencenenennenensessadinpumensnnimnan —

‘oreer'+ very higne ®

severity!) Youth e)

20-26) 26-32) (32-40) 40-48)

sonchns sonchs sonchs zonchs

OFFENSE CHARACTERISTIG : ' OFFENDER CHARACTERISTICS: Parole Prognosis

Sever:cy of Offense Behavior ' (Salient Factor Score 1981)

* Very Good Good Fair Poor

* (10-8) (7-6) (Sa) (3-0)

: Adult Range

* 40-52 52-64 64-78 78-100

* gonchs zoncis zonths goncths

Category Six ‘

[formerty ‘Greatest | °

severity’! : (Youth e)

" (30-40) (40-50) (50-60) (60-76)

* gonchs sonchs mzonchs gonchs

: Adult Range

* $2-80 64-92 78-110 100-148

* gonchs mzonchs mzonchs monchs

Category Seven tetas

\tereeriy ac'ivded a °

"Greatest |! sever! ty’! - (Youth Range)

* (40-66) (30-74) (60-60) (76-119)

* goncths months aonchs aonchs

‘ Adult Range

00+ 12 150+ 180+

acnchs zoncths zonchs sonths

Category Eighc* cl

[forwer'ty (ac udee ia .

"Greatest || sever! ty’! . (Youth Range)

* (80+) (100+) (120+) (150+)

* gonchs monchs zonchs monchs

"Note: For Category Eight, no wver limits are specified due to the extrene

variability of che cases within chis category. for decisions exceeding the

lower limit of the applicable guideline category SY MORE THAN 48 MONTHS, che

pertinent aggravating case factors considered are to be specified in the rea-

soms given (e@.g., Chat a Nomicide was premeditated or compitted during the

course of amocier felony; or chat extreme cruelty or >rutalicy was demonstrated).

J.S. PAROLE COMMISSION OFFENSE BEHAVIOR SEVERITY LNDEX

CHAPTER ONE. OFFENSES OF GENERAL APPLICABILITY ....... 2.0.0.0... cc caus

CHAPTER Two. OFFENSES INVOLVING THE PERSON.

Subchapter A - Homicide Offenses

Subchapter 8B - Assault Offenses

Subchapter C - Kidnaping and Related Offenses

Subchapter D - Sexual Offenses

Subchapter £ - Offenses iovolving Aircraft

Subchapter F - Commmication of Threats

-App. E6-

Subchapter

Suochapter 3

CHAPTER EIGHT.

Subchapter

Subchapter 8

CHAPTER NINE.

oubcnapter

OFFENSES LNVOLVDXG PROPERTY

Arson and crepes Destruction Offenses

Criminal Encry Offenses

Robbery, Extortion, and Blaciensail

Theft and Related Offenses

ee and Related Offenses

} tcy Offenses

Violations of Securities or Investment Regulations

ad aAncicrusc Offenses

OFFENSES INVOLVING DMMIGRATION, NATURALIZATION, AND PASSPORTS. .

- Internal Revere Offenses

- Customs Offenses

- Contraband Cigarettes

OFFENSES LNVOLVING GOVERNMENTAL PROCESS

- Impersonation of Officials

- Obstructing Justice

- Official Cormpcion

OFFENSES LNVOLVING INDIVIDUAL RIGHTS ..

- Offenses involving Civil Rigncs

- Offenses involving Privacy

OFFENSES LYVOLVLNG EXPLOSIVES AND WEAPONS

- Explosives and Other Dangerous Articles

- Firearms

OFFENSES LNVOLVING LLLICIT cRaucs

- Seroin and Opiate Offenses

- Marihuana anc Hashish Otfenses

- Cocaine Offenses

- Other [Liicic Drug Offenses

OFFENSES INVOLVING NATIONAL DEFENSE

Subchapter A - Treason and Related Offenses

Subchapter 8 - Sabotage and Related Offenses

Subchapter C - Espionage and Related Offenses

Suochapter D - Selected Service Offenses

Subchapter = - Other National Defense Offenses

TER £ » OFFENSES INVOLVING ORGANIZED CRIMINAL ACTT' TY,

a NG, OBSCENITY, SEXUAL EXPLOITATION OF CHILDREN PROSTITUTION,

* “we ee eA, ORL DER... . ee eee tthe eee ee. CS an a ee a

Subchapter A - Organized Crime Offense

Suochapter 3 - Gapdling Offenses

Suochapter C - Obscenity 3

Subchapter D - Exploitation of Children

Suscnapter E - Prosticution and shite Slave Traffic

subchapter F - Non-~Goverrmencal 3ribery

‘APTER TWELVE SD WOUND 5s ooo oc ansseccnvecccscechens,

GEXERAL NOTES AND OEFLNITICNS..

- General Notes

- Oefinicions

“App. E7-

CIAPTER ONE - OFFENSES OF CENERAL APPLICABILITY

101 Conspir:

Grade conspiracy in the sane category as the underlying offense.

4Uc ACtesoc

Crade attempt in the sane category as the offense attempted.

103 Aicing and Abecting

Grace aiding and abetting in the sane category as the underlying offense.

104 Accessory After the Fact

Grace accessory after the fact as to categories below the underlying offense,

duc noc less cf Category One.

--- NOTE TO CHAPTER ONE

The reasons for a conspiracy or attempt not Deing completed may, where the cir-

cumstances warrant, be considered as a aitigating factor (e.g., where there is

voluntary withdrawal by the offender prior 2 completion of the offense).

CHAPTER TwO - OFFENSES INVOLVING THE PERSON

SUBCHAPTER A - HOMICIDE OFFENSES

201 Murder

“urcer, or a forcible felony* resulting in the death of a person other tian a

Sicipating oftencer, small ce graced as Category Eight.

202 Voluntary Manslaughter

Category Seven.

203 Involuntary Manslaughter

Category Four.

SUBCHAPTER B - ASSALLT OFFENSES

2il Assault During Commission of Ancther Offense

(a) .f serious bodily injury* results or it "serious bodily injury is c.ou'y

intended'*, grace as Category Seven;

(b) Lf bodily injury* results, or a weapon is fired by any offender, grade as

Category Six;

¢) Otherwise, grade as Category Five.

212 Assaule

(a) If serious bodily injury*® results or if ‘serious Sodily injury is clearly

intended'*, grace as Category Seven;

(b) If bodily injury® resuits or a Gangerous weapon is used by any offender,

Tade as Category Five;

(3 herwise, grade as Category Two.

(d) Exception: Lf the victim was mown to be a "protected person'* or criminal

sustice official, grade concuct under (a) as Category Seven, (b) as Category

ix, amd (c) as Category Three.

SUBCHAPTER C - KIDNAPING AND RELATED OFFENSES

221 Kidnapin

(4) .= Sie purpose of the kidmaping is for ransam or terrorism, grade as

Category Eignc.

b) Lf a person is held hostage in a mown place for purposes of extortion (e.g.,

forcing a bank manager “o drive to a bak to retrieve zoney by nolcing a

family semder hostage at nome), grace as Category Seven;

"Terms marxec Sy an asterisx are defined in Chapter Thirteen. -

-App. E8-

enforcement authorities, grace as Category Seven;

{6} Otherwise, grade as Category Seven. ;

e) Exception: If noc for ramsam or terroriss, and no bodily injury ct victia,

and limited duration (e.g., abducting the driver of a truck during a

hijacking and releasing fim unharmed an hour later), grade as Category Six.

SUBCHAPTER D - SEXUAL OFFENSES

231 Forcible Rape or Forcible Sodany

(a) Category Seven.

(>) Exception: Lf a significance prior consensual relationship is presenc, grade

as Category Six.

232 Carnal Knowledge

(a) Category Four.

(>) Exception: If the relationship is clearly consensual, and the victim is at

»east .4 years old, and the age difference between victim and offender is

less chan four years, grace as Category One.

SUBCHAPTER E - OFFENSES INVOLVING AIRCRAFT

241 Aircrafs Piracy

Category Eigne.

Interference with a Flight Crew

a) .= tie comcuct or attempted comduct has potential for Creating a significanc

safety risk to a aircraft or passengers, grace as Category Seven.

(>) Otherwise, grade as Category Two.

SUBCHAPTER F - COMMLNICATION OF THREATS

251 Communicating a Threat [to «kill. assault. or kidnap!)

a) Category four; P

b) Notes:

(I) Amy overt act committed for the purposes of carrying out a threat in this

subchapter aay >e considered as m aggravating factor.

(2) Lf for purposes of extortion or odstruction of justice, grade according

iJ) He ord Three, Subchapter C, or Chapter Six, Subchapter 3, as

applicable.

CHAPTER THREE - OFFENSES INVOLVING PROPERTY

SUBCHAPTER A - ARSON AND OTHER PROPERTY DESTRUCTION OFFENSES

301 Property Destruction by Arson or Explosives

\4) .= The comduct results in serious Sodily injury* or if ‘serious bodily injury

is clearly intendec'*, grace as Category Seven;

(>) If the conduct imvolves any premises were persons are present or likely to

be present or a residence, duilding, or other structure, or results in ily

injury", grade as Category Six;

less chan Category Five.

302 Wreckine a Train

Category Seven.

303. Property Destructicn Other Than Listed Above

(a) 4f the concuct results in Sogily injury® or serious bodily injury*, or if

549

~*<

‘serious bodily intury is clearly intended'*, grace as if ‘assauic during

commission of amother offense’.

“Terms tarkec Sy am asterisx are celinec in mapter Thirteen.

“-App. E9- ,

) 1£ damage of more chan $500,000 is caused, grade as Cat

£8} is et of _— than $100,000 Sut not sore chan 3500, Wis caused, grade

tegory

(d) I 2 damage of. at Leas $20,000 but noc more chan $100,000 is caused, grade as

ry Four;

Co) Peele of de Lease $2000 ove less than $20,000 is caused, grade as

(2) HF damage of Jess san 52000 is caused, grade as Category One.

tion: Lf a significanc interruption of a govermmenct or public utility

Cion is caused, grade as noc less than Category Three.

SUBCHAPTER B - CRIMINAL ENTRY OFFENSES

311

ar or Unlawful Encry

a concuct involves an armory (or facility where weapons or explosives

are stored) for the purpose of chert or destruction of weapons or explosives.

Te « Category Six

(b) the conduct involves an inhabited dwell (whether or not a victim is

iy ee or any _——— with a hostile cation with a victis, grade

(a a grade as 'thefc' offense, bur noc less than Category Two.

(e) Exception: Lf the grade of the applicable ‘thert' offense exceeds the grade

uncer this subchapter, grace as a ‘therc' offense.

SUBCHAPTER C - ROBBERY, EXCORTION, AND BLACKMAIL

321

Robbery

(a) category Five.

(d) Sreeee Ons

hg of the oe ee ‘theft’ offense exceeds the grade for

={F as a ft’ offense.

(2) ye amy offender forces a victim co accompany any offencer 4 differenc

- location, or if a victim is forcibly decained for a significant period,

= as Category Six.

(3) Pickpocketing (stealth-no force or fear), see Subchapter D.

Extortion

(a) tf by threat of seyetesl in to person or perty, or extortionate

oar of credit (loansharking) , Parade as EScegory’ Five;

(db) Lf - use of official goverrmental position, grade according to Chapter Six,

cer C.

(T) TF the grade of the applicable ‘theft’ offense exceeds the grace under

2) Ifa ts pateically held toscage for’; é

( ita Sine @ s eg y stage for purposes of extortion, ace

accord to Chapter Two . Y Subchapter *C. i

Blaciesail [threat to injure reoutation or accuse of crime]

Grace as a thert’ oftense according to the vaiue of the property demanded, but

noc less chan Category Three. Actual damage to reputation say be consicered as

aM aggravating factor.

SUBCHAPTER D - THEFT AND RELATED OFFENSES

33)

Theft, Forzerv, Fraud, Trafficking in Stolen Properry*. Interstate Transportation

Of Stolen Proverty, Aeceiving Stolen Property, Snoezzlement. and xelated Otsenses

a) Lf the vaiue of the property” is more than 3500,000, grace as Category Six.

(>) Lf the value of the property*® is gore chan $100,000 but not tore then

$500,000, grade as Category Five;

"lerms Barkec Dy am asterisk are Gef.ned in chapter thirt

-App. E10-

grace as Cacegory Four; :

(d) Té a me the property* is at leasc $2000 but less chan $20,000, grade

as CH

(e) If the tale of the properry* is less chan $2000, grade as Category ne.

(£) Exceotions:

tenses imol stolen checks or mail, forgery, fraud, interstate

transportation of stolen or forged securities, crafficking in stolen

, OF embezzlement shall be graded as noc less than Ca Tyo;

(2) Brefe oF an automobile shall be graded as no less chan Category Shree;

the cheft was intended for resale. in such case, grade as Category One.

(g) Noce: In ‘theft’ offenses, the cocal amount of the theft committed or

actanpted by che offender, or others acting in concert with the offender, is

to used.

332 Pickpocxeting [stealth-no force or fear)

race a8 a chert oftense, moc less chan Category Three.

333. Fraudulenc Loan Applications

Gr. asa uc" offense according to the amount of che loan.

Preparation or Possessicn of Fraudulent Oocumencs

4) oe Of commActing amoCner oftense, grace according to the offense

intended ;

(>) Otherwise, grade as Category Tyo.

SUBCHAPTER E - COUNTERFEITING AND RELATED OFFENSES

.f the face value of the currency or other medium of exchange is gore than

$500,000, grade as Category Six;

if the tace value is more chan $100,000 but noc more than $500,000, grade as

c ve;

is the face value is at least $20,000 but not more than $100,000, grade as

tegory Four;

(4) ys face value is ac least $2000 bur less chan 520,000, grade as Category

ee;

(e) Lf che face value is less than $2000, grade as Category Two.

342 Marmufaccure of Counterfeit Currency or Other Medium of Exchange* or Possession

of wnsctrumencs for | acture

c acCure or possession of inscrumencs for asanufaccure (e.g., a print

ess or plates) according =o the quancicy orinted (see passing or possession)),

moc less chan Category Five. ‘the term ‘manufacture’ refers to the capacity

7 preat Or generate multiple copies; it does not apply to pasting Cogecher parts

of different noces.

SUBCHAPTER F - BANKRUPTCY OFFENSES

35) Fraud in Ccy or Concealing Property

Grace as a frauc’ oftense.

SUDCHAPTER G - VIOLATION OF SECURITIES OR LNVESTMENT REGULATIONS AND

ANTI OFFENSES

ITRUST

361 Violation of Securities or invescment Reculations (8 U.S.C. 77££,80)

for purposes of fraud, grace according to the underlying offense;

(b) Otherwise, grace as Category Two.

wlerms aarkeco LY an asterisk are delined in “wpter Thirteen.

“App. Ell-

Ancticrusce Offenses

(a) Lf estimated economic impact is more cn one million dollars, grade as

atenee7 Four ;

(b) If estimated economic impact ‘. gore chan $100,000 but noc more than me

million dollars, grade as Category Three;

CHAPTER FOUR - OFFENSES LNVOLVING DMIGRATION, NATURALIZATION, AND PASSPORTS

Unlawfully Entering the United Scaces as an Alien

Category Two.

Smuggling of Alien(s) into the Uniced Scaces

Category Lhree.

Offenses Lmvolving Passports

(a) Lf making an unlawrul passport for discribution to amocher, possession wich

intenc to distribute, or distribution of an unlawful passport, grace as

Gategory Three;

(>) Lf fraudulencly acquiring or improperly using a passport, grade as Category

Offenses Lmvolving Naturalization or Cicizenshio Pavers

(a) If forging or falsifying nacuralizacion or citizenship papers for

discribution to anocher, possession with intenc to distribute, or

distribution, grade as

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