Joost v. United States Parole Commission

• Decision Date: 04 February 1982
• Docket Number: No. 80-3110.,80-3110.
• Citation: 535 F. Supp. 71
• Court: U.S. District Court — District of Kansas
• Parties: Robert JOOST, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent.

535 F. Supp. 71

Robert JOOST, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent.

No. 80-3110.

United States District Court, D. Kansas.

February 4, 1982.

Robert Joost, pro se.

James J. Marquez, U. S. Atty., Topeka, Kan., for respondent.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Petitioner herein, an inmate of the United States Penitentiary, Leavenworth, Kansas, having been granted leave to proceed in forma pauperis, filed with the Clerk of the Court this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. A rule to show cause issued to which respondent filed an answer and return, and petitioner has submitted his traverse. Having examined all pleadings and materials filed, the Court makes the following findings and Order.

On January 8, 1976, petitioner was convicted in the United States District Court for the District of Connecticut of conspiracy to violate the rights of a citizen, death resulting, and was sentenced to a twenty-five year regular adult prison term. The initial hearing on his application for parole was held at the institution on September 4, 1979. The examiner panel recommended that a presumptive parole date be set of June 3, 1983. However, the Regional Commissioner disagreed with the panel's recommendation and referred the case to the National Commissioners for consideration. The National Commissioners advised petitioner on October 23, 1979, of their decision to continue his case for a ten-year reconsideration hearing in September, 1989. This decision was affirmed on administrative appeal. The reasons given for the decision were:

Your offense behavior has been rated as Greatest II severity because the offense behavior resulted in the death of an individual. You have a salient factor of 3. You have been in custody a total of 75 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 100 + months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.

As required by law, you have also been scheduled for a statutory interim hearing during October 1981.

No procedural irregularities in these processes are alleged or indicated. Available administrative remedies have been exhausted.

Petitioner claims that (1) the sentencing judge's intentions have been thwarted by the Commission's refusal to grant parole at the one-third point of his sentence, (2) the statutory and regulatory parole scheme unconstitutionally allows the Commission to usurp the sentencing power of the judiciary, and (3) the Commission's refusal to parole petitioner at the one-third point of his sentence increased the intended punishment in contravention of the ex post facto clause of the United States Constitution.

In an earlier Order dated August 12, 1980, we rejected petitioner's claim that he is entitled to habeas corpus relief because the sentencing judge intended that he be released at the one-third point of his sentence. We cited United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), in which the United States Supreme Court held that the sentencing judge has no enforceable expectations with regard to the actual release of a sentenced defendant short of the statutory term. The order to show cause was issued to facilitate our determination of petitioner's constitutional claims of violations of the separation of powers doctrine and the ex post facto clause.

More specifically stated, petitioner's claims are that it is the judiciary's constitutional province to determine the punishment imposed upon an individual criminal defendant; that the sentencing judge, by sentencing petitioner under the option set forth in 18 U.S.C. § 4205(a) manifested his expectation and intent that petitioner would be released on parole after serving one-third of his sentence provided only that he maintained good institutional adjustment; and that the denial of his parole application at the one-third point based not upon institutional performance but upon factors already considered by the sentencing judge effectively increased the punishment intended by the Court and amounted to a usurpation of the sentencing function.

Since we issued a show cause order in this case, we have discovered that several courts, in addition to the Second Circuit in Moore v. Nelson, 611 F.2d 434 (2nd Cir. 1979), have held that the Parole Commission and Reorganization Act, 18 U.S.C. § 4201, et seq., hereinafter referred to as PCRA does not amount to an unconstitutional delegation or usurpation of judicial power. Page v. United States Parole Commission, 651 F.2d 1083 (5th Cir. 1981); Priore v. Nelson, 626 F.2d 211 (2d Cir. 1980); Wilden v. Fields, 510 F.Supp. 1295 (W.D.Wis.1981); Hawkins v. United States Parole Commission, 511 F.Supp. 460 (E.D.Va.1981); see also Hayward v. United States Parole Commission, 659 F.2d 857 (8th Cir. 1981). We agree with this conclusion; however, we have been unable to locate a case which supported its conclusion with substantial discussion. For this reason, we include the following comments.

The constitutional challenges to the PCRA proffered by petitioner and similar challenges scrutinized in Geraghty v. United States Parole Commission, 579 F.2d 238 (3rd Cir. 1978) vacated and remanded on class action issue, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), appear to rest upon two basic misperceptions concerning sentencing and parole. First, we must eradicate petitioner's imprecise perception of the judiciary's role in punishment of criminal offenders. At the outset, we note that there is no constitutional provision which explicitly provides or has been interpreted as providing that a judge must set or be able to predict the date of a defendant's actual release from prison whenever that might occur prior to the maximum term imposed. Congress has traditionally defined what behavior is criminal and prescribed the range of punishments to be imposed for such crimes. The sentencing court has traditionally been delegated the authority to select from the prescribed range the most appropriate sentence on consideration of the individual defendant and circumstances. To this day, the court designates in the judgment and commitment order the maximum time an individual may be required to serve for his crime. Furthermore, by selecting one of the statutory sentencing options setting the time of parole eligibility the court effectively designates the minimum term of imprisonment. The court then commits the defendant to the custody of the Attorney General for the time of the sentence. The sentence is executed by the Attorney General and his delegates within the executive branch of Government. As part of the responsibility to execute sentences, Congress has permitted executive authorities to ameliorate punishment by awarding statutory good time. Another traditional method of amelioration of punishment is executive pardon. Parole is technically nothing more nor less than another form of amelioration or mitigation of punishment authorized and defined by Congress and carried out by an executive agency. The PCRA, effective in March, 1976, has not substantially altered this overall scheme. We conclude that no function entrusted to the judiciary by the United States Constitution has been delegated to the United States Parole Commission.

The core of petitioner's complaint is that the Commission relied upon his offense severity, a factor fully considered by the sentencing court, to deny parole beyond the time of release predicted by the sentencing court. Petitioner evidently intends this Court to infer that the sentencing judge imposed a twenty-five year sentence under the § 4205(a) option because he believed it would result in petitioner serving eight and one-third years in prison given good institutional adjustment. The simple answer to this is that the judge could have, but did not, sentence petitioner to eight and one-third years.

Federal judges have long been aware of the limitations on their sentencing powers with regard to execution of a sentence. Judges have no authority to designate the geographical location or security level of the institution in which the defendant is to serve his term. Their recommendations concerning such options need not be followed by the Bureau of Prisons. Amelioration of punishment has never been purely a judicial function, and, as with other options of sentencing execution, the judge has no enforceable expectations with regard thereto short of the statutory term.

The second pervasive misperception regarding parole is that the decision to grant or deny parole is part of the punishment annexed to the crime. This is the theory underlying petitioner's claim of a violation of the ex post facto clause. It is technically incorrect to perceive the denial of parole by the Commission as punishment. It is necessary here to distinguish eligibility for parole from the decision whether or not to grant parole. The time of federal parole eligibility is set as part of the sentence. Thus, statutory ineligibility for parole or delayed eligibility under the federal sentencing statutes has been deemed part of the punishment and cannot constitutionally be adversely altered subsequent to sentencing. On the other hand, the decision to grant or deny parole is made long after sentence has been entered and the prosecution terminated. Bradley v. United States, 410 U.S. 605, 611, 93 S.Ct. 1151, 1155, 35 L.Ed.2d 528 (1973); Morrissey v. Brewer, 408...