Priore v. Nelson, 149

• Decision Date: 11 June 1980
• Docket Number: No. 149,D,149
• Citation: 626 F.2d 211
• Parties: John PRIORE, Petitioner-Appellant, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, and Cecil McCall, Chairman, U. S. Parole Commission, Respondents-Appellees. ocket 79-2073.
• Court: U.S. Court of Appeals — Second Circuit

Page 211

626 F.2d 211

John PRIORE, Petitioner-Appellant, v. W. Raymond NELSON, Warden, Federal Correctional Institution Danbury, Connecticut, and Cecil McCall, Chairman U. S. Parole Commission, Respondents-Appellees.

No. 149, Docket 79-2073.

United States Court of Appeals Second Circuit.

Submitted Sept. 14, 1979.

Decided June 11, 1980.

Kenneth N. Flaxman, Chicago, Ill., for petitioner-appellant.

Frank H. Santoro, Asst. U. S. Atty., New Haven, Conn. (Richard Blumenthal, U. S. Atty. for the Dist. of Conn., George C. Jepson, Law Student Intern, New Haven, Conn., on brief, of counsel), for respondents-appellees.

Before LUMBARD, MANSFIELD and GURFEIN, ^* Circuit Judges.

MANSFIELD, Circuit Judge:

John Priore, an adult federal prisoner serving a sentence upon his conviction of embezzlement of union funds in violation of 18 U.S.C. § 1962(a), appeals from an order of the District Court for the District of Connecticut entered on April 12, 1978, by Judge T. F. Gilroy Daly, denying his petition for a writ of habeas corpus seeking his release from confinement on the grounds that the parole release guidelines of the United States Parole Commission promulgated pursuant to the Parole Commission and Reorganization Act (PCRA), 18 U.S.C. § 4203(a) ¹ (1) are inconsistent with congressional intent in enacting the PCRA, (2) impinge On February 2, 1978, Priore, head of Local 690 of the Amalgamated Workers Union of America, pleaded guilty in the District Court for the Eastern District of New York to one count of an indictment charging him with embezzlement of union funds in violation of 18 U.S.C. § 1962(a). He was sentenced to a term of five years imprisonment and fined $25,000. The sentence did not contain any provision for early parole eligibility, see 18 U.S.C. § 4205(b).

upon both the traditional sentencing prerogatives of the judiciary and the legislative functions of Congress, and (3) violate the double jeopardy and ex post facto prohibitions of the Fifth Amendment. We affirm.

Appellant commenced serving his sentence in March 1978. In June 1978, pursuant to 28 C.F.R. § 2.12, which accords each prisoner a parole release hearing within 120 days after the beginning of his confinement, a hearing was held and parole release was denied by the Commission. A Commissioner of Parole, applying guidelines that had been promulgated by the United States Parole Commission, found that appellant's anticipated period of incarceration would be 48 to 60 months. The reasons for the decision were set forth in a hearing summary dated June 29, 1978 and communicated to Priore in a "Notice of Action," dated July 3, 1978. The latter advised that release had been denied because appellant's "offense behavior has been rated as very high severity because the overall offense involved the use of extortion as means and embezzlement of union funds." Upon administrative appeal the decision was affirmed by the Regional Commission on August 15, 1978, and by the National Appeals Board on January 4, 1979.

In March 1979 Priore, then incarcerated at the Federal Correctional Institution at Danbury, filed a petition in the District Court for the District of Connecticut seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the ground that the parole release guidelines, pursuant to which the Commission acted, were unlawful. On April 11, 1979, Judge Daly denied his petition, finding that the guidelines had been properly promulgated pursuant to statutory authority, that they did not conflict with the judicial sentencing prerogative, that they did not violate the double jeopardy and ex post facto provisions of the Constitution, and that the Commission had not violated 18 U.S.C. § 4206(d), discussed infra, which requires release of a prisoner after he has served two-thirds of a five-year sentence (i. e., 40 months), subject to certain conditions. From this decision Priore appeals.

DISCUSSION

The Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218, which was enacted by Congress in 1976, created the United States Parole Commission, an independent federal agency vested with power to grant and deny the parole of any eligible federal prisoner, subject to certain mandatory limits in the case of prisoners sentenced to terms of five years or more. The Commission is directed to "promulgate rules and regulations establishing guidelines" with respect to exercise of its discretionary power to release federal prisoners on parole, 18 U.S.C. § 4203(a), and "such other rules and regulations as are necessary to carry out a national parole policy." The statutory criteria governing the Commission in its formulation of guidelines are prescribed by 18 U.S.C. § 4206(a), which provides:

"(a) 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;

subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released."

The Commission is empowered to apply the guidelines in parole release decisions, 18 U.S.C. § 4203(b), and to grant or deny parole in spite of the guidelines "if it determines there is good cause for so doing," 18 U.S.C. § 4206(c). ²

The principal purpose and intent of the Act was described in the House Conference Report, a joint explanatory statement of conferees made to both the House and the Senate. H.R.Rep. No. 94-838, 94th Cong., 1st Sess., reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 335, 351. The Report notes that, although parole originated as a form of clemency designed to partially mitigate an unusually harsh sentence or to reward exemplary institutional behavior, it had now taken on the broader goal of determining "precisely how much time an offender must serve (in most cases where sentences had been imposed by the court)." This requires the Commission to weigh complex factors, including the "practical effect of balancing differences in sentencing policies and practices" between judges and courts in a far-flung federal criminal justice system, a task which requires the parole authority "to have in mind some notion of the appropriate range of time for an offense which will satisfy the legitimate needs of society to hold the offender accountable for his own acts," H.R.Rep. No. 94-838, supra at 19-20, 1976 U.S.Code Cong. & Admin.News, supra at 351-52.

In discussing § 4206(a) the Conference Report made the following relevant statement:

"It is the intent of the Conferees that the Parole Commission, in making each parole determination, shall recognize and make a determination as to the relative severity of the prospective parolee's offense and that in so doing shall be cognizant of the public perception of and respect for the law. It is the view of the Conferees that the U.S. Parole Commission is joined in purpose by the Courts, the Congress and the other Executive agencies in a continuing effort to instill respect for the law. The Parole Commission efforts in this regard are fundamental and shall be manifested by parole determinations which result in the release on parole of only those who meet the criteria of this act.

"Determinations of just punishment are part of the parole process, and these determinations cannot be easily made because they require an even-handed sense of justice. There is no body of competent empirical knowledge upon which parole decision-makers can rely, yet it is important for the parole process to achieve an aura of fairness by basing determinations of just punishment on comparable periods of incarceration for similar offenses committed under similar circumstances. The parole decision-makers must weigh the concepts of general and special deterrence, retribution and punishment, all of which are matters of judgment, and come up with determinations of what is meant by 'would not depreciate the seriousness of his offense or promote disrespect for the law' that, to the extent possible, are not inconsistent with the findings in other parole decisions.

"The phrase 'release would not depreciate the seriousness of his offense or promote disrespect for the law' involves two separate criterion and there may be situations in which one criterion is met but the other remains unsatisfied. For example, if a public official was convicted of fraud which involved a violation of the public trust and was sentenced to three years imprisonment, his release on parole after one year might satisfy and depreciate the seriousness criterion but the Commission could justify denying release on the grounds that such release 'would promote disrespect for the law.' "The use of the phrase 'release would not jeopardize the public welfare,' is intended by the Conferees to recognize the incapacitative aspect of the use of imprisonment which has the effect of denying the opportunity for future criminality, at least for a time. It is the view of the Conferees that the Parole Commission must make judgments as to the probability that any offender would commit a new offense based upon considerations which include comparisons of the offender with other offenders who have similar backgrounds. The use of predictive devices is at best an inexact science, and caution should be utilized. Such items as prior criminal records, employment history and stability of living patterns have demonstrated their usefulness in making determinations of probability over a substantial period of time. These are not written into the statute, however, as it is the intent of the Conferees to encourage the newly created Parole Commission to continue to refine both...