594 F.2d 170 (7th Cir. 1979), 78-2051, Rodriguez v. United States Parole Commission

Docket Nº:78-2051.
Citation:594 F.2d 170
Party Name:John J. RODRIGUEZ, Petitioner-Appellee, v. UNITED STATES PAROLE COMMISSION and Metropolitan Correctional Center, Robert Elsea, Warden, Respondent-Appellants.
Case Date:March 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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594 F.2d 170 (7th Cir. 1979)

John J. RODRIGUEZ, Petitioner-Appellee,



Correctional Center, Robert Elsea, Warden,


No. 78-2051.

United States Court of Appeals, Seventh Circuit

March 20, 1979

Argued Feb. 20, 1979.

Rehearing Denied May 1, 1979.

Edward J. Moran, Asst. U. S. Atty., Chicago, Ill., for respondents-appellants.

Robert K. Mayer, Chicago, Ill., for petitioner-appellee.

Before SPRECHER, TONE, and WOOD, Circuit Judges.

TONE, Circuit Judge.

The issue raised on this appeal is whether the Ex post facto clause of the United States Constitution, Art. I, § 9, is violated by the retroactive application of an administrative regulation that denies a prisoner sentenced under 18 U.S.C. § 4205(b)(2) any meaningful consideration for parole. The district court answered in the affirmative; we agree and therefore affirm.

Petitioner John Rodriguez was prosecuted and convicted in early 1977 of having made false statements to a government agency and having used the mails to defraud in 1974 and 1975. The charges were presumably laid under 18 U.S.C. §§ 1001, 1341. 1 On April 21, 1977, he was sentenced to a maximum term of two years imprisonment under then 18 U.S.C. § 4208(a)(2), now 18 U.S.C. § 4205(b) (2), which meant he was eligible for parole immediately. 2 Rodriguez

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began serving his sentence on May 12, 1977, at the federal penitentiary at Terre Haute, Indiana, and received an "initial parole determination" hearing about three months later, on August 15, 1977. On August 25, 1977, the Parole Commission denied Rodriguez' petition for release and determined that he should serve his maximum sentence. 3 Later, Rodriguez was transferred to the Metropolitan Correctional Center in Chicago where he applied for a review hearing. Relying on the Parole Commission's new regulation, the officials there refused to schedule such a hearing. Rodriguez then filed this habeas corpus action. The district court held that his rights under the Ex post facto clause had been violated and ordered him released unless the commission held a meaningful hearing within 30 days. When the commission appealed, he was released on bond, pending the outcome of the appeal.


Before 1976 the parole statute, 18 U.S.C. §§ 4201, Et seq. (1970), did not prescribe "when, or how often" a prisoner was entitled to parole consideration. See 42 Fed.Reg. 31785 (June 23, 1977). For prisoners sentenced under then 18 U.S.C. § 4208(a)(2) (1970), the Board of Parole, now the Parole Commission, 4 adopted the practice of conducting an initial hearing shortly after commitment. See Garafola v. Benson, 505 F.2d 1212, 1215 (7th Cir. 1974). Also, as we recounted in that opinion,

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).

Id. at 1214. In addition to the guideline factors, however, the Board's rules provided that " 'changes in motivation and behavior,' 'institutional experience' " and "the evaluation made at the hearing (were) factors in the parole decision-making process of the Board." Id.

Because the initial hearing for those sentenced under § 4208(a)(2) was held so soon after commitment, there was little opportunity to demonstrate any change in motivation or behavior and very little institutional experience for the board to evaluate. As a consequence prisoners sentenced under § 4208(a)(2) were rarely, if ever, granted parole at that initial hearing. See id. at 1215; Grasso v. Norton, 520 F.2d 27, 35 (2d Cir. 1975); Id. 38, 39 (Feinberg, concurring). Indeed, the board advised prisoners that they should not even expect parole at the initial hearing. Garafola v. Benson, supra, 505 F.2d at 1215 n.2. Yet, for many of the prisoners who received an initial hearing shortly after commitment, usually those whose sentences were relatively short, a further hearing was dispensed with altogether or not held until after the one-third point in the sentence, with the result that further parole consideration or parole was either denied or postponed beyond the one-third point. Id. at 1215 & n.3.

Ironically, prisoners who were not eligible for parole until they had served one-third of their sentences, having been sentenced under former 18 U.S.C. § 4202, stood a better chance of being paroled at that time than prisoners sentenced under § 4208(a)(2). For them the initial parole hearing was held at

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the one-third point in their sentences, and it was a meaningful one, for by then substantial institutional experience with the prisoner had been gained and he might hope to demonstrate changes in motivation and behavior. "In a substantial number of cases, the prisoner (was) granted a parole at this initial hearing." Id. at 1215.

Thus a provision that was intended to make immediate parole possible was applied by the board in such a way that it was likely that a prisoner to whom the sentencing judge made it applicable would either not be paroled at all or would be paroled at a later point in his sentence than a prisoner who had received a sentence of the same length under the apparently less favorable § 4202. This court and others held that the board's practice was contrary to the purposes of § 4208(a)(2) and that a prisoner sentenced under the provision was entitled to a meaningful parole hearing prior to the one-third point in his sentence. E.g., id. at 1218-1219; Grasso v. Norton, supra, 520 F.2d at 35. In Bijeol v. Benson, 513 F.2d 965 (7th Cir. 1975), the relief granted to the petitioners in Garafola v. Benson was extended to all prisoners sentenced under § 4208(a)(2) who were confined at the Terre Haute Penitentiary. In response to these decisions, the board adopted a regulation requiring a review hearing for any prisoner sentenced under § 4208(a)(2) at the one-third point of his sentence. See 28 C.F.R. § 2.14(e) (1977).

After Rodriguez had committed the offenses for which he was convicted, but before he was sentenced, Congress adopted the Parole Commission and Reorganization Act, 90 Stat. 219, 18 U.S.C. §§ 4201, Et seq. For prisoners sentenced under the successor of former § 4208(a)(2), § 4205(b)(2), the Act requires the United States Parole Commission, as the former board is now named, to conduct an initial hearing within 120 days of commitment, 18 U.S.C. § 4208(a). For all prisoners the Act requires the commission to conduct review hearings "not less frequently than 18 months," if the maximum sentence imposed is greater than one year but less than seven years. 18 U.S.C. § 4208(h). Viewing § 4208(h) as a rejection of the one-third hearing requirement, the commission filed notice of a proposal to eliminate 28 C.F.R. § 2.14(e), 42 Fed.Reg.13305, 13306 (March 10, 1977).

After considering the comments received on the proposal, the commission decided to eliminate § 2.14(e), 42 Fed.Reg. 31785 (June 23, 1977). The commission seems to have tried to avoid the unfairness of retroactively eliminating the one-third hearing for those who had already been scheduled for such hearings:

The rule change will be prospective only, that is prisoners now continued for one-third hearings, will receive their hearings as scheduled, but prisoners initially heard after August 1, 1977 will not be continued for one-third hearings.

Id. For prisoners whose initial hearings were held after August 1, 1977, as was that of Rodriguez, the next review could be as late as 18 months from the date of the hearing, without regard to the one-third points of their sentences.

The commission was aware that a second hearing 18 months after the first would be of practically no benefit to prisoners who had received "short 'indeterminate' sentences (E. g., two years). The only opportunity for these prisoners to be paroled would be at an initial hearing conducted only three or four months after confinement has begun." Id. Nevertheless, the commission expressed its belief

that Congress intended this result. There is little reason to assume the probability of a significant change in circumstances occurring at some fractional point of a short sentence; only with longer sentences does the probability of such a change justify continuous review. Moreover, the Commission's criteria for parole consideration expressly assume continued good behavior, so that a prisoner is not penalized for being unable to show a record of good conduct at the initial parole hearing. In the extraordinary case §§ 2.15 and 2.28 permit the reopening of a previous decision.

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Id. It is by no means clear that the commission's view of what Congress intended is correct. Section 4208(h)(1) does not proscribe hearings more frequent than every 18 months; it simply requires the commission to conduct hearings at least that frequently.

The legislative history of the Act makes it plain that Congress intended the commission to continue to consider a prisoner's institutional behavior in determining whether parole release is warranted:

First, it is the intent of the Conferees that the Parole Commission reach a judgment on the institutional behavior of each prospective parolee. It is the view of the Conferees that understanding by the prisoner of the importance of his institutional behavior is crucial to the maintenance of safe and orderly prisons.

H.R.Rep.No.94-838 (Conference Report), 94th Cong., 2d Sess. 25, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 358. Whether the commission's "criteria" establishing continued good behavior as a prerequisite to parole release is adequate in light of this expression of intent may be subject to some doubt; for presumably behavior less than...

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