Marshall v. Garrison, 81-6151

• Decision Date: 16 September 1981
• Docket Number: No. 81-6151,81-6151
• Citation: 659 F.2d 440
• Parties: John S. MARSHALL, Appellant, v. W. L. GARRISON, Warden, Maurice Sigler, Chairman, U.S. Parole Commission, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 440

659 F.2d 440

John S. MARSHALL, Appellant, v. W. L. GARRISON, Warden, Maurice Sigler, Chairman, U.S Parole Commission, Appellees.

No. 81-6151.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1981.

Decided Sept. 16, 1981.

Joseph J. Trepel, Silver Spring, Md., for appellant.

Michael A. Stover, U.S. Parole Commission, Washington, D. C. (Justin W. Williams, U. S. Atty., Thomas K. Berger, Asst. U. S. Atty., Alexandria, Va., Joseph A. Barry, U. S. Parole Commission, Washington, D. C., on brief), for appellees.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and BRITT, ^* District Judge.

WINTER, Chief Judge:

Marshall, a federal prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Alleging various constitutional and procedural errors in the United States Parole Commission's evaluation of his eligibility for parole, Marshall sought to compel the Parole Commission to grant him a rehearing under directions from the district court with regard to applicable rules to be applied. The district court denied Marshall's petition without hearing because it concluded that Marshall had failed to allege a constitutional violation. We reverse and remand for plenary consideration of Marshall's petition.

I.

In 1973 Marshall pleaded guilty in the United States District Court for the District of Columbia to charges of attempting to kill a member of Congress (Senator John C. Stennis), armed robbery, assault with intent to kill while armed, and carrying a dangerous weapon. ¹ Marshall was under twenty-two years of age, and he was sentenced as a "youth offender" under the Federal Youth Corrections Act to serve fifteen years in prison. 18 U.S.C. § 5010(c). By virtue of 18 U.S.C. § 5017(d), Marshall could be released conditionally under supervision at any time.

In January 1979 Marshall appeared before the Parole Commission which set an effective parole date of November 14, 1979. On March 19, 1979, however, Marshall received notice that his parole date had been changed from effective to presumptive. On July 12, 1979, he was informed that the Commission would reconsider that date based on new evidence that Marshall had committed a second robbery on the day Senator Stennis was shot.

After a hearing on September 19, 1979, a panel of Parole Commission hearing examiners considered the evidence that Marshall had participated in a second robbery and "strongly recommended" that Marshall again receive an effective parole date of November 14, 1979. However, the National Commissioners rejected this recommendation and set a new parole date for January 28, 1983; and, when Marshall took an administrative appeal, this action was affirmed by the full Parole Commission. The Commission based its decision on three factors: Marshall's "active participation" in a second robbery on the day Senator Stennis was shot and robbed; the "severity" of the crimes to which Marshall pleaded guilty; and Marshall's commission of seven institutional infractions while he was in prison. The seven institutional infractions had been known to the Commission in January 1979 when it fixed November 14, 1979, as his parole date.

On August 1, 1980, Marshall filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. ² Aside from other claims that he has abandoned on appeal, Marshall alleged that the Parole Commission had violated the Constitution's proscription of ex post facto laws by evaluating him on the basis of the severity of his offenses, a factor that could not have been considered under the law as it existed at the time he committed the crimes to which he pleaded guilty, and had abused its discretion by considering his alleged participation in the second alleged robbery without any "substantial information" that proved that participation. The district court denied the petition without holding an evidentiary hearing, ruling that none of Marshall's allegations "overcomes the broad discretion which the Commission holds by statute and by case law to grant or deny parole, and none states a constitutional violation."

II.

We consider first Marshall's allegation that the Parole Commission "by applying offense severity standards against your Petitioner, who was sentenced prior to their adoption, violated the United States Constitution's ban on ex post facto laws, Art. I, Sec. 9, Clause III, and has thereby unjustly increased the punishment of your Petitioner, a juvenile offender." To determine whether Marshall stated a valid constitutional claim, we begin by comparing the criteria for parole release decisions for youth offenders that were appropriate under the Youth Corrections Act as it existed in 1973, when Marshall committed the crimes of which he was convicted, ³ with those that were used by the Parole Commission to extend Marshall's parole date to January 28, 1983.

The Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5024, was enacted by Congress in 1949 to provide a means of rehabilitation, rather than simply punishment, for persons under the age of twenty-two who had been convicted of a federal crime. ⁴ As explained by the Senate Report that accompanied the bill, "(t)he underlying theory of the bill is to substitute for retributive punishment methods of training and treatment designed to correct and prevent antisocial tendencies. It departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation." (1950) U.S.Code Cong.Serv. 3983, 3985. In determining which of several available methods of treatment to employ for a youth offender, the Youth Corrections Division of the Board of Parole is required by 18 U.S.C. § 5014 to make a study of the offender, "including a mental and physical examination, to ascertain his personal traits, his capabilities, pertinent circumstances of his school, family life, any previous delinquency or criminal experience, and any mental or physical defects or other factor contributing to his delinquency." 18 U.S.C. § 5014. "The severity of the youthful offender's crime was conspicuously absent from the factors that could be assessed in determining whether to treat or release him." Shepard v. Taylor, 556 F.2d 648, 653 (2 Cir. 1977).

From the legislative history of the Act and from its enumeration of factors appropriate for consideration in selecting the method of treatment, we think that Congress originally intended that the decision whether to release a youth offender should be based on considerations of rehabilitation rather than on considerations of general deterrence and retribution. Because the severity of a youth offender's offense is relevant only to the latter considerations, it was not a proper factor to be assessed in determining whether to grant parole. As the Supreme Court stated in describing the philosophy of the original Youth Corrections Act, "(a)n important element of the program was that once a person was committed for treatment under the Act, the execution of sentence was to fit the person, not the crime for which he was convicted." Dorszynski v. United States, 418 U.S. 424, 434, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974) (emphasis added).

Our conclusion that offense severity was not a proper factor to be considered in making parole evaluations of persons sentenced under the pre-1976 version of the Youth Corrections Act is in accord with the views expressed by five other federal courts. Shepard v. Taylor, 556 F.2d 648, 652-53 (2 Cir. 1977); Benites v. United States Parole Commission, 595 F.2d 518, 520 (9 Cir. 1979); DePeralta v. Garrison, 575 F.2d 749, 751-52 (9 Cir. 1978); Rifai v. United States Parole Commission, 586 F.2d 695, 699 (9 Cir. 1978); United States ex rel. Mayet v. Sigler, 403 F.Supp. 1243, 1244 (M.D.Pa.1975), aff'd without published opinion, 556 F.2d 570 (3 Cir. 1977). Only one court of appeals has suggested otherwise. In Fronczak v. Warden, El Reno Reformatory, 553 F.2d 1219 (10 Cir. 1977), affirming 431 F.Supp. 981 (W.D.Okla.1976), the Tenth Circuit held that the Parole Commission (then called the Parole Board) had not exceeded its statutory authority in promulgating and employing parole guidelines for persons sentenced under the pre-1976 version of the Youth Corrections Act that considered the severity of the youth offenders' crimes. See 28 C.F.R. § 2.20 (1976). But Fronczak is of little authority here. The prisoner in Fronczak challenged the Parole Commission's guidelines as unlawful because inconsistent with the purpose of the Youth Corrections Act; he did not invoke the ex post facto clause as does Marshall in the case before us.

In 1976 Congress introduced the factors of general deterrence and retribution into the parole evaluation equation for persons sentenced under the Youth Corrections Act. In the Parole Commission and Reorganization Act, Pub.L.No.94-233, § 7, 90 Stat. 219, 232 (1976) (codified at 18 U.S.C. §§ 4201-4218), Congress amended 18 U.S.C. § 5017(a), the section of the Youth Corrections Act regarding release of youth offenders, to incorporate the parole criteria upon which adult parole decisions would be made. See 18 U.S.C. § 5017(a) (1981 Supp.). Those criteria are contained in 18 U.S.C. § 4206:

If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:

(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and

(2) that release would not jeopardize the public welfare; ... pursuant to guidelines promulgated by the Commission pursuant to (18 U.S.C. s) 4203(a)(1), such prisoner shall be released.

The legislative history of the Parole Act shows that through the amendment of 18 U.S.C. § 5017(a) Congress intended to apply...