Birch v. Anderson

• Decision Date: 29 October 1965
• Docket Number: No. 19323.,19323.
• Citation: 358 F.2d 520,123 US App. DC 153
• Parties: Keyworth C. BIRCH, Jr., Appellant, v. Sam A. ANDERSON, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 153, 358 F.2d 520 (1965)

Keyworth C. BIRCH, Jr., Appellant, v. Sam A. ANDERSON, Appellee.

No. 19323.

United States Court of Appeals District of Columbia Circuit.

Argued October 8, 1965.

Decided by Judgment Entered October 29, 1965.

Opinion Rendered December 9, 1965.

COPYRIGHT MATERIAL OMITTED

Mr. John M. Rommel, Washington, D. C. (appointed by this court), for appellant.

Miss Carol Garfiel, Asst. U. S. Atty., for appellee. Mr. David C. Acheson, U. S. Atty., at the time the brief was filed, Messrs. Frank Q. Nebeker and Oscar Altshuler, Asst. U. S. Attys., and Mr. Patrick H. Corcoran, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee.

Before FAHY, WRIGHT and TAMM, Circuit Judges.

FAHY, Circuit Judge:

This opinion contains a fuller statement of the reasons for our judgment of October 29, 1965, which placed in effect our decision that appellee, Superintendent of the District of Columbia Jail, could not validly retain custody of appellant under the authority claimed in this case.

On September 17, 1959, the United States District Court for the Southern District of Texas sentenced appellant to five years imprisonment for violations of the federal narcotic laws. On February 18, 1963, he was released on a mandatory good-conduct release pursuant to 18 U.S.C. § 4163.¹ On December 5, 1963, he was arrested in the District of Columbia on a charge which was dismissed for lack of evidence. On January 9, 1964, he was arrested here again, this time for violation of the uniform narcotic drug act,² was convicted June 5, 1964, sentenced to 360 days imprisonment, and has fully served this sentence.

On March 21, 1964, 180 days before the expiration of the maximum term of the sentence of September 17, 1959, appellant's release became unconditional pursuant to 18 U.S.C. § 4164, which reads in part as follows:

A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days. * * *

On March 21, 1964, appellant accordingly was no longer "deemed as if released on parole." Nevertheless, on June 25, 1964, a parole violation warrant was issued against him by the United States Board of Parole and executed December 18, 1964.³ The board considered that by reason of the parole violation of January 9, 1964, (and the arrest of December 5, 1963) appellant could be required to serve the full five-year term of the 1959 sentence. We conclude, however, that prior to the issuance of the warrant on June 25, 1964, the board had lost jurisdiction of appellant and accordingly his confinement by virtue of the issuance and execution of the warrant was invalid.

For a contrary position the board relies upon 18 U.S.C. § 4205 and the period set out there during which a warrant may be issued. This statute is applicable primarily to those paroled at the discretion of the board, not to those who have been mandatorily released. It reads in part as follows:

A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only * * * within the maximum term or terms for which he was sentenced. * * *

The problem is whether Section 4164, which for a period of time brings into effect, with respect to mandatory releasees, board supervision applicable to parolees (partially spelled out in Section 4205), terminates the period of such supervision with the prisoner's unconditional release 180 days before the expiration of the maximum term or terms of his sentence. We think the language, purposes and history of the relevant statutes demonstrate that it does. The time during which a warrant may issue for a parolee under Section 4205 does not by the terms of that section apply to a mandatory releasee. That section applies to mandatory releasees at all only by authority of Section 4164. The time such a releasee is "deemed as if released on parole," set forth in the latter section, defines the time the board has jurisdiction over a releasee. The time the board has jurisdiction under Section 4205 was designed to coincide with the period of board supervision of parolees. Our view is that the power of the board to issue a warrant for mandatory releasees coincides with the period of board supervision of such releasees.

This time is independent of the control prescribed, i. e., the authority of the board to retake by a warrant. During the time a releasee is "deemed as if released on parole" he is subject to the type of control applicable to a parolee, developed in Chapter 311, 18 U.S.C., but the existence of a parolee type of control for that period by no means extends the period the board has control of a releasee beyond that specified in Section 4164.

Section 4205 is concerned primarily with discretionary parolees, while Section 4164 is concerned with a prisoner who has earned a reduction in his sentence. With this in mind we pursue a more detailed review of the history of the statutes, beginning with the enactment of the first federal parole statute in 1910. 36 Stat. 819-822; 37 Stat. 650; 18 U.S.C. §§ 714-722 (1926). It had the purpose of rehabilitating prisoners by their parole, while protecting society by careful selection of parolees and by their control and supervision during parole⁴ "until the expiration of the term or terms specified in his sentence, less such good time allowance as is or may hereafter be provided for by law." A warrant for the retaking of a parolee for parole violation could be issued "at any time within the term or terms of the prisoner's sentence."

The purpose of the good conduct deductions was different. It was to promote prison discipline and "mitigate the severity of sentences."⁵ This purpose ended with release of the prisoner, and his release was mandatory and unconditional.⁶ In contrast, the rehabilitative purpose of parole continued to the end of the maximum term and the parolee, as we have said, could be retaken at any time within the term. 18 U.S.C. § 717 (1926). This difference between a releasee and a parolee is evidenced in the 1926 codification by separation of the provisions for release for good conduct, appearing at 18 U.S.C. §§ 710-713 (1926), and those relating to discretionary parole, appearing at 18 U.S.C. §§ 714-722 (1926).

In 1932, a change in legislative policy occurred.⁷ Congress provided that a prisoner who shall have served his term less good conduct deductions and is then released should nevertheless "be treated as if released on parole, and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence.⁸ The 1932 amendment was thus in itself a legislative recognition that under the 1910 statute a releasee, in contrast with a parolee, had not been subject to the parole laws after serving his term less deductions for good conduct. Had the 1932 provisions been retained it would seem that the board's present position would be correct. But further experience brought about another change in legislative policy.

In 1951 Congress amended 18 U.S.C. § 4164 as it now provides, set forth above. This amendment limits the jurisdiction of the board over a mandatory releasee to the maximum term or terms for which he was sentenced "less one hundred and eighty days." Thus at the beginning of the 180-day period the board's jurisdiction of a releasee terminates, as prior to 1932 it had terminated when the term of sentence had been shortened by good-conduct deductions.

It is well to set forth at this point our court's recognition of the difference between a parolee and a releasee, stated as follows in Hyser v. Reed, 115 U.S.App.D.C. 254, 263, 318 F.2d 225, 234:

The general category of parolees can be broken down into two distinct groups: mandatory releasees and parolees. Mandatory releasees are those prisoners who have served their sentences less a credit for good behavior, 18 U.S.C. § 4161, and for industrial or employment performance "good time," 18 U.S.C. § 4162. When a prisoner has served his sentence less his good time credit he is entitled, as a matter of right, to be released. 18 U.S.C. § 4163. This type of prisoner release is based on an arithmetical computation; there is no discretion in the Bureau of Prisons to deny release.5 A mandatory releasee does not achieve absolute freedom upon release from prison. For a period of time equal to his good time allowance less 180 days, the mandatory releasee is treated as if he were released as a parolee and is subject to supervision by the United States Parole Board. 18 U.S.C. § 4164 (1958 ed. Supp. II).

"5. However, judgment is exercised in determining "good time" credit.

Unlike a mandatory releasee, a parolee gains his conditional freedom as the result of the exercise of discretion by the Parole Board. After a federal prisoner has served a prescribed portion of his sentence, 18 U.S.C. §§ 4202, 4208, he may apply for parole. * * * The Board may grant parole when it is of the opinion "there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws" and upon "such terms and conditions * * * as the Board shall prescribe." 18 U.S.C. § 4203. * * *

The course through Congress of the 1951 amendment to Section 4164 clearly manifests the difference between a parolee and a mandatory releasee, as this difference previously had been shown in the legislative history to which we have already referred.

The House Report⁹ states that prior to 1932 release for good conduct was unconditional, thus shortening the term, and that the 1932 amendment providing parole supervision for good conduct releasees was to help them readjust and to encourage their good behavior. In recommending their unconditional release when only 180 days of a sentence remained the Report states:

With only a short time remaining

...