Grasso v. Norton

• Citation: 376 F. Supp. 116
• Decision Date: 30 April 1974
• Docket Number: Civ. No. B-813,B-74-87.
• Court: U.S. District Court — District of Connecticut
• Parties: Frank GRASSO v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al. Marcelo DIAZ v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

376 F. Supp. 116

Frank GRASSO v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

Marcelo DIAZ v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

Civ. Nos. B-813, B-74-87.

United States District Court, D. Connecticut.

April 30, 1974.

Dennis E. Curtis, New Haven, Conn., for petitioners.

Barry J. Cutler, Asst. U. S. Atty., New Haven, Conn., for respondents.

MEMORANDUM OF DECISION ON MOTIONS FOR SUPPLEMENTAL RELIEF

NEWMAN, District Judge.

In these two unrelated cases raising issues concerning the procedures of the United States Board of Parole in the administration of 18 U.S.C. § 4208(a)(2), both sides have filed motions seeking supplemental relief after the initial decisions. Grasso v. Norton, 371 F.Supp. 171 (D.Conn.1974) (hereafter Grasso I); Diaz v. Norton, 376 F.Supp. 112 (D.Conn.1974).

Grasso I ruled that an (a)(2) prisoner, who is eligible for parole at any time, could not receive less effective parole consideration than a non-(a)(2) prisoner, who is eligible for parole only after serving one-third of his sentence. 18 U.S.C. § 4202. Since the Board, after considering Grasso for parole after only three months of his three-year sentence, had continued him to expiration, this Court ruled that he was entitled to parole consideration at the one-third point of his sentence. At issue now is whether the parole consideration to be given (a)(2) prisoners like Grasso at the one-third point must be a hearing at which the prisoner and his representative are present, or can be a review of the prisoner's file supplemented by a progress report. In Diaz the Government contends that if compliance with Grasso I requires a hearing, such a ruling should be given prospective effect only.

On March 7, 1974, a Court hearing was held in Grasso, at which testimony was received from the staff psychiatrist at F.C.I., Danbury, petitioner's case worker, and petitioner. In Diaz, a Court hearing was held on April 8, at which Peter Hoffman, the Board's director of research, testified. The Government offers his testimony also on the issues pending in Grasso.

I. Procedure in (a)(2) Cases

At the time of this Court's decision in Grasso I, the procedures of the Board provided that parole consideration was to be accorded at hearings conducted at an inmate's institution before two hearing examiners. 28 C.F.R. § 2.15. Both the inmate and his representative have a right to be present. As will be discussed in more detail, part III, infra, the Board initially responded to this Court's decision in Grasso I by scheduling a hearing for Grasso at F.C.I., Danbury, to be held on February 28, 1974. The Board then changed its mind and decided to cancel the hearing and consider Grasso's case on March 1, 1974, on the papers in his file, supplemented by a progress report prepared by his case worker. This procedure preceded an instruction to the Board's staff, issued March 4, 1974, which purported to formalize the system of file review for (a)(2) prisoners at the one-third point of their sentences. See Diaz v. Norton, supra, 376 F.Supp. at 116, n. 4.

The proposed system of file review for (a)(2) prisoners at the one-third point of their sentences is a significant improvement over the Board's prior practice of giving consideration, after the initial hearing, only at a date well beyond the one-third point and, in some instances, no further consideration at all.¹ Nevertheless, the file review still runs counter to the purposes of § 4208(a)(2) because it accords (a)(2) prisoners a form of parole consideration less satisfactory than that accorded non-(a)(2) prisoners. The differences are significant. The testimony disclosed that a parole hearing at F.C.I., Danbury, normally lasts fifteen to twenty minutes. During this time the hearing examiners question the prisoner closely. Thus, at the one-third point of his sentence, a non-(a)(2) prisoner has the opportunity to speak directly with the examiners and respond to their questions. Often his case worker is present to respond to the examiners' inquiry. The (a)(2) prisoner, remitted to a file review, loses this opportunity for direct personal contact. The fact that he had a hearing shortly after he arrived at the institution is no answer, because the very brevity of his time served before that first hearing precluded any realistic opportunity to persuade the examiners that his institutional progress merited parole.

There is another, more subtle difference. When the non-(a)(2) prisoner has his hearing at the one-third point of his sentence, the examiners conscientiously decide what parole decision is appropriate. However, when the (a)(2) prisoner gets a file review at the one-third point, after having first received a setoff to a date well beyond the one-third point, the Board is starting with a slightly stacked deck. The decision is not whether and when should he be paroled; it is whether the setoff previously given should be changed. In all processes of decision-making, it is more difficult to undo a decision already made, than to decide the same issue on a clean slate.

Between the lines of both the Government's brief and the Hoffman testimony emerges what is perhaps the main reason why the Board prefers a file review to an institutional hearing for (a)(2) prisoners at the one-third point of their sentences. It is simply that because of the growing reliance by the Board upon its guideline table, see Battle v. Norton, 365 F.Supp. 925, 934, Appx. 2 (D.Conn. 1973), there is only a slight likelihood that a hearing at the one-third point will vary the decision from the setoff given at the first hearing. Hoffman testified that if all parole decisions that could possibly be considered to be within the Board's guidelines are counted as such, the percentage of all parole decisions that fall within the guideline table is now running between 92% and 94%. That is a marked increase from an earlier estimate of 63%. See Battle v. Norton, supra, 365 F.Supp. at 933, Appx. 1. Just as significant, Hoffman testified that the Board grants parole in subsequent hearings in 90% of the cases, usually at the second hearing.

It is thus apparent what is happening. The Board considers an (a)(2) prisoner after two or three months of his sentence and at that hearing frequently continues him to a point at or just prior to the length of confinement indicated for that prisoner by the guideline table. Then at the second hearing, parole is often granted, especially for sentences in the two to five year range. Understandably, the Board prefers not to bother with institutional hearings at the one-third point of the sentence, since it has already used the guideline table to select the likely parole date, and has given a setoff consistent with that date. The one-third point of the sentence is irrelevant to the Board's timetable for (a)(2) prisoners.

As Hoffman candidly testified, a principal advantage of an (a)(2) sentence is simply that the prisoner finds out at an early date in his sentence what the guideline table specifies for his case.²

Despite the current heavy reliance by the Board on the guideline table, an (a)(2) prisoner cannot be denied the opportunity to urge in person, at the one-third point of his sentence, that he is entitled to parole, just as the non-(a)(2) prisoner can contend. The Board has publicly stated in its most recent biennial report that it has adopted an "exhaustive list of factors which it takes into consideration when parole is considered" including "behavior changes," "the institutional experience," and "general personal adjustment." See "The United States Board of Parole" (1972) 10. A court is entitled to assume that the Board is not allowing its guideline table to eliminate consideration of such vital factors. There can be little doubt that such factors are better considered as a result of a personal interview than from a file review.

Due process may not require an in-person parole hearing for any prisoners. But § 4208(a)(2) requires that (a)(2) prisoners not be denied at the one-third point of their sentences as effective a hearing as is accorded at the same point to non-(a)(2) prisoners, at least where the interval between an initial hearing and the one-third point is substantial. See Grasso I, supra, 371 F.Supp. at 174.

II. Retroactive Application

The Government's motion for reconsideration in Diaz urges that the decision in Grasso I be given prospective effect only. Presumably, this would mean that the only (a)(2) prisoners who would be entitled to institutional hearings at the one-third point of their sentences would be those who reached the one-third point after the date of Grasso I, or perhaps only those whose initial parole hearing occurred after such date. In support of this contention, the Government cites one of the criteria for determining retroactivity set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), the "effect on the administration of justice."

The criteria listed in Stovall for determining retroactivity were developed by the Supreme Court in a series of cases beginning with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Linkletter was concerned with "the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked." Id. at 627. In this case, Diaz is not seeking the benefit of Grasso I to attack a prior final judgment. He did not receive a parole hearing at the one-third point of his sentence, and all he seeks is the right to have such a hearing. While the Supreme Court has indicated that determinations of prospectivity are not limited to collateral attacks upon final criminal convictions, it has catalogued the pertinent factors in terms somewhat different from those identified in Stovall when considering cases other than criminal convictions. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92...