Prater v. U.S. Parole Com'n

• Citation: 802 F.2d 948
• Decision Date: 03 October 1986
• Docket Number: No. 84-1121,84-1121
• Parties: William J. PRATER, Petitioner-Appellant, v. U.S. PAROLE COMMISSION and Thomas Keohane, Warden, Respondents-Appellees. . Re
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 948

802 F.2d 948

55 USLW 2275

William J. PRATER, Petitioner-Appellant, v. U.S. PAROLE COMMISSION and Thomas Keohane, Warden Respondents-Appellees.

No. 84-1121.

United States Court of Appeals Seventh Circuit.

Reargued En Banc June 9, 1986.

Decided Oct. 3, 1986.

James J. Barrett, Pine Ridge, Ky., for petitioner-appellant.

John D. Tinder, U.S. Atty. (Carolyn N. Small, Asst. U.S. Atty., Indianapolis, Ind., on brief), Indianapolis, Ind., for respondents-appellees.

Before BAUER, Chief Judge, CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

This appeal from the denial of a petition for habeas corpus requires us to consider the constitutional prohibition against ex post facto laws. In 1969, on New Year's Eve, Joseph Yablonski, a dissident official of the United Mine Workers union, was murdered along with his wife and daughter on the orders of the union's president. Yablonski's prominence, the motivation for the killings, and the murder of family members along with the prime target gave the incident unusual notoriety. See, e.g., Armbrister, Act of Vengeance: The Yablonski Murders and Their Solution (1975); Lewis, Murder by Contract: The People v. "Tough Tony" Boyle (1975); A Deadly Venom, Time, Jan. 19, 1970, at 19; Death of a Rebel, Newsweek, Jan. 19, 1970, at 22. In 1973 William Prater, a union official who was one of the three men who had conspired to assassinate Yablonski--his role being to transfer union pension funds to the triggerman in payment for the assassination--pleaded guilty to conspiracy to injure a United States citizen in the exercise of his federal rights, in violation of 18 U.S.C. Sec. 241, and was sentenced to life in prison. See id. Under federal law he was eligible for parole after serving ten years. 18 U.S.C. Sec. 4205(a). Because of Prater's age (63 when he became eligible for parole), and because he was a model prisoner and had no prior convictions and no history of drug abuse, he might have been paroled upon first becoming eligible, had it not been for the notoriety of his crime. Instead the Parole Commission ruled that "release at this time would depreciate the severity of your offense behavior," and it pushed off his presumptive parole date to 1988. Under the Parole Commission and Reorganization Act of 1976, which the Commission applied to Prater's case even though he had committed the crime before 1976, an inmate "shall be released" if the Parole Commission determines that his release "would not depreciate the seriousness of his offense or promote disrespect for the law" and "would not jeopardize the public welfare." 18 U.S.C. Sec. 4206(a).

Prater sought habeas corpus, contending that the ground on which his request for parole had been denied had come into the law after he had committed his crime and therefore could not be used to deny him parole without violating the ex post facto clause in Article I, section 9 of the Constitution. The parole law in force in 1969 (unchanged in essentials since the Act of June 25, 1910, ch. 387, Sec. 3, 36 Stat. 819 (1910)) provided that "if it appears to the Board of Parole [as the Parole Commission was then called] ... that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole." 18 U.S.C. Sec. 4203(a) (1970 ed.). The government moved to dismiss the petition for habeas corpus and Prater countered with a motion for judgment on the pleadings. The district court granted the government's motion and Prater appealed. A panel of this court ordered the case remanded to the district court for a factual inquiry into whether Prater would have been denied parole under the statute in force in 1969. 764 F.2d 1230 (7th Cir.1985). The government petitioned for rehearing en banc, and we granted the petition.

As the panel majority noted, "It seems implausible that the perpetrator of a grave and notorious crime could operate under a serious misapprehension that a parole board, armed with broad discretion, would fail to consider the public ramifications of his premature release from prison--whatever the formal state of the applicable statutes or guidelines." Id. at 1239. "Nevertheless," the majority added, "it may in fact be so," and remanded to give Prater an opportunity to show that the change in the parole statute had "clearly and significantly reduced" "his expectations of release at a certain time." Id. Yet at the en banc argument Prater's counsel made clear that he did not want an opportunity to make such a showing, in the district court or anywhere else. He acknowledged that the 1976 statute had merely codified the practice of the Parole Commission (as we shall call both the Commission and its predecessor) under guidelines that had been issued in 1973 to guide its administration of the old statute. "The promulgation of guidelines to make parole less disparate and more understandable has met with such success that this legislation [i.e., the 1976 act] incorporates the system into the statute, removes doubt as to the legality of changes implemented by administrative reorganization, and makes the improvements permanent." H.R. Conf. Rep. No. 838, 94th Cong., 2d Sess. 20 (1976), U.S. Code Cong. & Admin. News 1976, pp. 335, 353. And the 1973 guidelines had provided that "the reasons for parole denial may include, but are not limited to ... (1) Release at this time would depreciate the seriousness of the offense committed and would thus be incompatible with the welfare of society." 28 C.F.R. Sec. 2.13(b) (1974).

The guidelines may seem not to forbid the Commission to grant parole where parole would depreciate the seriousness of the offense but merely to allow the Commission to deny parole on that ground, although it is obvious that no agency authorized to deny parole on that ground would fail to do so if the ground were present; no responsible parole commission could take the position that while releasing the prisoner would be incompatible with the welfare of society, he should be released anyway. This weird possibility is in any event foreclosed by another provision of the guidelines--"The [Commission] may parole a prisoner who is otherwise eligible if (a) in the opinion of the Board such release is not incompatible with the welfare of society," 28 C.F.R. Sec. 2.18 (1974)--as well as by the parallel language of the underlying statute ("if in the opinion of the [Commission] such release is not incompatible with the welfare of society, the [Commission] may in its discretion authorize the release of such prisoner on parole," 18 U.S.C. Sec. 4203(a) (1970 ed.). Since a grant of parole that would depreciate the seriousness of the prisoner's offense would be incompatible with the welfare of society (Sec. 2.13(b)(1)), the Commission could not parole a prisoner if to do so would depreciate the seriousness of the offense.

In stating that "whereas the 1973 guidelines permitted the Parole [Commission] to consider depreciation of the seriousness of the offense (thereby perhaps just codifying prior practice), Congress made that criterion a precondition of parole in the new act," 764 F.2d at 1233, the panel that first heard this appeal apparently was misled by a subsequent change in the guidelines; for the language it quotes to show that the guidelines merely permitted the Commission to consider the seriousness of the offense, language that is from the 1981 edition of the Code of Federal Regulations and lacks the critical equation of depreciating the seriousness of the offense to being incompatible with the welfare of society, see id. at 1233 and n. 2, is not the language of the 1973 guidelines. When sections 2.13(b)(1) and 2.18 of those guidelines are read together (and with 18 U.S.C. Sec. 4203(a) (1970 ed.)), there can be no doubt that the 1973 guidelines required the Commission to deny parole if granting parole would depreciate the seriousness of the prisoner's offense. The guidelines define a grant of parole that would depreciate the seriousness of the offense as incompatible with the welfare of society, and the guidelines and the statute forbid any grant of parole that would be incompatible with that welfare.

It is therefore no surprise that Prater's main complaint is about the guidelines, which made clear that parole must be denied if granting it would depreciate the seriousness of the prisoner's offense, rather than about the 1976 statute, which did not alter the guidelines and hence did not affect the decision not to parole him. But he has an uphill fight in attacking the guidelines as an ex post facto law. No member of the original panel questioned the proposition, stated in many cases (including two by this court), that the prohibition against ex post facto laws is not violated by applying more severe parole guidelines than those in force when the crime was committed. See, e.g., Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980) (Rehnquist, J., in chambers); Inglese v. United States Parole Comm'n, 768 F.2d 932, 934-39 (7th Cir.1985); Zeidman v. United States Parole Comm'n, 593 F.2d 806, 808 (7th Cir.1979); Yamamoto v. United States Parole Comm'n, 794 F.2d 1295, 1297-98 (8th Cir.1986) (per curiam); DiNapoli v. Northeast Regional Parole Comm'n, 764 F.2d 143, 146-47 (2d Cir.1985); Paschal v. Wainwright, 738 F.2d 1173, 1180-81 (11th Cir.1984); Dufresne v. Baer, 744 F.2d 1543, 1549-50 (11th Cir.1984); Warren v. United States Parole Comm'n, 659 F.2d 183, 195-97 (D.C.Cir.1981). Only the Third Circuit has rejected this proposition, see Royster v. Fauver, 775 F.2d 527, 534-35 (3d Cir.1985); United States ex rel. Forman v. McCall, 709 F.2d 852, 859-62 (3d Cir.1983), and even that court has held that guidelines...