Garafola v. Benson, s. 74-1787

• Decision Date: 05 December 1974
• Docket Number: Nos. 74-1787,s. 74-1787
• Parties: Samuel K. GARAFOLA et al., Petitioners-Appellees, v. Charles L. BENSON, Warden, et al., Respondents-Appellants. to 74-1789, 74-1791 and 74-1792.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1212

505 F.2d 1212

Samuel K. GARAFOLA et al., Petitioners-Appellees, v. Charles L. BENSON, Warden, et al., Respondents-Appellants.

Nos. 74-1787 to 74-1789, 74-1791 and 74-1792.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 30, 1974.

Decided Nov. 18, 1974, Rehearing Denied Dec. 5, 1974.

Stanley B. Miller, U.S. Atty., Richard L. Darst, Asst. U.S. Atty., Indianapolis, Ind., for respondents-appellants.

Michael B. Nash, Chicago, Ill., for petitioners-appellees.

Before SWYGERT, Chief Judge, and SPRECHER and TONE, Circuit Judges.

TONE, Circuit Judge.

These appeals involve challenges to the decision-making procedures of the United States Board of Parole in cases in which the sentencing judge, acting under 18 U.S.C. 4208(a)(2), has specified 'that the prisoner may become eligible for parole at such time as the board of parole may determine.'

The federal sentencing statutes contain three provisions concerning parole eligiblity of adult offenders. The first is 18 U.S.C. 4202, which provides for the 'straight' sentence, under which the prisoner may be released on parole after serving one-third of his term (or after serving fifteen years of a life sentence or a sentence of over forty-five years). The second and third are 18 U.S.C. 4208(a)(1) and (2), adopted by Congress in 1958, 72 Stat. 845. Under these provisions the judge sentencing a defendant to a prison term may fix 'a minimum term at the expiration of which the prisoner shall become eligible for parole,' which cannot exceed one-third of the sentence (4208(a)(1)), or may provide that the prisoner shall be eligible for parole whenever the Board of Parole so determines (4208(a)(2)). Section 4208(a) thus allows the sentencing judge to permit the Parole Board to parole a prisoner earlier than the one-third of sentence point provided in 4202.

The question before us is whether the Parole Board is required to give meaningful consideration to parole in a 4208(a)(2) case before the expiration of one-third of the prisoner's sentence.

I

All five petitioners were sentenced under 18 U.S.C. 4208(a)(2), and are serving their sentences at the United States Penitentiary at Terre Haute, Indiana. Petitioners Garafola, DeCesare and Horvath were sentenced for terms of three years, and petitioner Loy was sentenced for a term of two years. In each of these four cases the Parole Board held an initiial parole hearing within approximately two or three months of the time the prisoner commenced his sentence, and in each instance the prisoner was denied parole and his case was 'set off' or continued to the expiration of his sentence.

Petitioner Bartello was sentenced to a term of six years. He received his initial hearing approximately three months after he began to serve his sentence, and his case was set off for two years, until December, 1974.

Each of the petitioners filed a habeas corpus petition pursuant to 28 U.S.C. 2241 asserting that the Board's action was not in compliance with the requirements of 18 U.S.C. 4208(a)(2). The petitions were assigned to a single district judge and consolidated by him pursuant to Rule 42(a), F.R.Civ.P., for determination of the common questions of law presented. The warden of the penitentiary is named as a respondent in all five petitions, and the Board of Parole and officials of the Board are named as additional respondents in four of the petitions. The United States Attorney, who represents all of the respondents, make no point of the absence of the Parole Board defendants in one of the cases, so we treat that case like the others.

The District Court entered an order to show cause in each case and the respondents filed motions to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted.

The District Court appears not to have expressly ruled on the motions to dismiss, but impliedly did so in a memorandum of decision dated August 2, 1974, holding that petitioners' construction of 4208(a)(2) was correct. The court reasoned that 'if 4208(a)(2) has any purpose, and the Court must assume that it does, the purpose must be to allow the Board, in its discretion, to grant parole in less than one-third of the sentence in cases where all of the relevant circumstances warrant such action,' a construction which, the court said, makes that provision compatible with 4202. The court ordered that the writ issue discharging petitioners 'unless within thirty days the Board rescinds its previous decisions as to them and substitutes new orders continuing them to dates at or prior to the expiration of one-third of their respective sentences, at which time they will be entitled to in-person parole consideration. In those cases where one-third of the term has already passed, the hearing is ordered to be held within 30 days of this date.'

Shortly before the expiration of the 30-day period allowed by the District Court for the parole hearings, the respondents filed an application for stay pending appeal and a notice of appeal. Petitioners filed responses to the motion, reciting that the Parole Board had conducted parole hearings at Terre Haute during the period of August 19 through August 29, 1974 but had failed and refused to grant petitioners hearings and failed to modify its previous orders. These assertions were not denied by the respondents, and the District Court accepted them as true. On September 24, 1974, the court denied the motion for stay and ordered the warden to release petitioners on parole September 30, 1974 unless the order was stayed by this court.

On respondents' application, we stayed the District Court's order of September 24 and ordered an accelerated briefing schedule and an early setting for argument.

II

In 1973 the Board of Parole adopted a table of guidelines for use in deciding the length of time a prisoner should serve before he is released on parole. 38 F.Reg. 31942 (1973), 28 C.F.R. 2.20 (Rev. July 1, 1974). These guidelines, which set out point ratings for offenses and offender characteristics, represent an effort by the Board to 'establish a national paroling policy' and to promote consistency and fairness in its parole decisions 'without removing individual case consideration.' 28 C.F.R. 2.20(a) (Rev. July 1, 1974).

The Board continues to base its exercise of discretion in part on considerations outside the guidelines. According to an affidavit of the Board's Chairman printed as an appendix in Battle v. Norton, 365 F.Supp. 925, 932-933 (D.Conn.1973):

'The guideline ranges are set for cases with good institutional performance. A hearing panel may render a decision either above or below the guideline range if it is justified by a sufficient explanation. Circumstances in which the Board may consider decisions below the guidelines include exceptionally good institutional performance; . . . and cases in which the Board feels that the clinical risk prognosis is substantially better than indicated by the offender characteristics score.'

Thus, as Judge Jon O. Newman stated in Grasso v. Norton, 371 F.Supp. 171, 173 (D.Conn.1974) (Grasso I), even though prison performance 'is not a factor that determines an inmate's rating on the offender characteristic scale,' it 'is not wholly excluded from parole decision making.' On the contrary, the Board's regulations provide that among the factors the Board may consider in its parole decision-making, in addition to the guidelines, are 'changes in motivation and behavior,' 'institutional experience,' and 'comments by hearing examiners; evaluative comments supporting a decision, including impressions gained from the hearing.' 28 C.F.R. 2.19(d), (f) and (j) (Rev. July 1, 1974). Thus, according to the Board's rules, the prisoner's institutional performance and achievement as well as the impressions gained and the evaluation made at the hearing are factors in the parole decision-making process of the Board.

III

The Board's procedure when the prisoner has received a 'straight' sentence under 18 U.S.C. 4202 is to hold the initial hearing at the time he becomes eligible for parole, i.e., at the completion of one-third of the term. ¹ United States Board of Parole, You and The Parole Board, pp. 1, 3 (1971). If a parole is not granted at that time the Board continues the case to another date for future consideration or 'continues to expiration.' In the latter event, no further consideration is given to parole. Id., at p. 10.

The parole hearing which the prisoner receives at the one-third point of his sentence is conducted before two hearing examiners and normally lasts 15 to 20 minutes. The prisoner is entitled to be present and may be represented by a person of his choice. His case worker at the institution is often also present. Grasso v. Norton, 376 F.Supp. 116, 118 (D.Conn.1974) (Grasso II); see also United States Board of Parole, You and The Parole Board, p. 3; 28 C.F.R. 2.12, 2.13 (Rev. July 1, 1974). In a substantial number of cases, the prisoner is granted a parole at this initial hearing.

When the prisoner has been sentenced under 4208(a)(2), the Board's practice is to hold its initial hearing, at which the prisoner personally appears, 'as soon as possible after . . . commitment' (United States Board of Parole, You and The Parole Board, p. 1), which is normally within two to four months after the prisoner begins serving his sentence. Ordinarily serious consideration is not given to parole at this initial hearing. ² In the great majority of cases the Board continues the case, as it did the five cases before us, either to a date which is beyond the one-third point in the prisoner's sentence or until expiration of the sentence. ³

The (a)(2) prisoner serving a relatively short sentence is thus likely to be paroled at a later date than his counterpart who has received a straight sentence under 4202, or not to be paroled at all. Typically, the 4202 prisoner would receive his initial hearing at the one-third point in his sentence and...