# Petition — Geraghty v. United States Parole Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1445%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1103 ## Text 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- 8) 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 wD o oO a wo wy po -- N wy ct t-- oO 2 \Y 0 ct oO rh im oO | 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 2 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- 3 (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. I. 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- 4+ 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. 5 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 6 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. 7 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. A. 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- 8 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). 9 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. B. “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- 10 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- —_—_—— 11 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- 12 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- 13 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. A. 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- 14 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- 15 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- 16 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- 17 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. B. 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- 18 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. 19 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. A. 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- 20 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- 21 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- 22 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. 23 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. B. 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- 24 (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 25 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- 26 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- 27 C. 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- 28 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- 29 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- 30 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1445%3A1. Public record. Not legal advice.