US v. Jackson, Crim. No. K-76-053.

• Decision Date: 07 March 1988
• Docket Number: Crim. No. K-76-053.
• Citation: 681 F. Supp. 295
• Parties: UNITED STATES of America v. Derrick JACKSON.
• Court: U.S. District Court — District of Maryland

681 F. Supp. 295

UNITED STATES of America v. Derrick JACKSON.

Crim. No. K-76-053.

United States District Court, D. Maryland.

March 7, 1988.

Breckinridge L. Willcox, U.S. Atty., and Veronica M. Clarke, Asst. U.S. Atty., Baltimore, Md., for U.S.

Fred Warren Bennett, Federal Public Defender, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Senior District Judge.

Derrick Jackson was sentenced by this Court on May 4, 1976 to 15 years under the Federal Youth Corrections Act (YCA), 18 U.S.C. §§ 5005-20,¹ after being convicted of aiding and abetting a bank robbery. Between November 11, 1976 and February 4, 1980, Jackson was confined in youth offender institutions of the Federal Bureau of Prisons (the Bureau). On that latter date, Jackson was paroled. On August 27, 1986, Jackson was notified, after a parole revocation hearing had been held, that his parole was revoked because of his conviction while on parole for attempted possession of a short-barrelled shotgun, for his failure to appear in a state court proceeding in Maryland in 1980, and for being a fugitive for three years subsequent to 1980. On August 27, 1986, when Jackson received the parole revocation notice, he was confined as a youth offender at the Federal Correctional Institution at Englewood, Colorado (Englewood). On November 26, 1986, Englewood wrote to the headquarters of the Bureau in Washington, D.C. requesting that "no further benefit" proceedings be initiated by the Bureau with respect to Jackson.

In June, 1987, while confined at Englewood, Jackson completed his General Equivalency Diploma. On December 29, 1987, Jackson received thirty days' disciplinary segreation for fighting with another inmate at Englewood. Jackson's present presumptive parole date is October 30, 1990. The expiration date in connection with his service of all outstanding federal sentences is April 16, 1994.

On February 17, 1988, Jackson, represented by counsel, appeared before this Court. During that hearing, evidence was produced by the Government seeking a "no further benefit" finding under 18 U.S.C. § 5010(d) and by Jackson in opposition thereto, and the legal and factual issues discussed in this opinion were fully and ably argued by counsel for both the Government and Jackson.

I.

As part of its passage of the Sentencing Reform Act of 1984,² effective October 12, 1984 Congress repealed certain sections of the YCA, i.e., 18 U.S.C. §§ 5010-16. These sections include § 5010(c) under which Jackson was sentenced in 1976, and § 5010(d) under which the Government seeks to have this Court make a "no further benefit" finding. The repeal of the YCA requires this Court to confront the threshold question of whether it has subject matter jurisdiction to entertain the Government's request for a "no further benefit" finding.

Prior to October 12, 1984, 18 U.S.C. § 5010(d), the section of the YCA at issue in this case, read as follows:

If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.

Pursuant to that statutory language and the case law developed by Ralston v. Robinson, 454 U.S. 201, 102 S.Ct. 233, 70 L.Ed. 2d 345 (1981), and its progeny, a federal district court clearly had jurisdiction before 1984 to issue a "no further benefit" finding under certain circumstances.³ However, in the recent case of United States v. Davison, 655 F.Supp. 1254 (D.Idaho 1987), the court held that it could not make a "no further benefit" finding, given the repeal of 18 U.S.C. § 5010(d).

Davison had originally been sentenced in 1974 to consecutive fifteen-year and life sentences, pursuant to 18 U.S.C. § 5010(c). After federal court litigation involving whether Davison was housed as required by the YCA, the Government, about twelve years after the original sentencing, sought a "no further benefit" finding.⁴ The district court noted that Congress had repealed section 5010(d) which had conferred jurisdiction upon it to make a "no further benefit" finding, and that Congress had done so without enacting a savings clause relative to that and related sections. The district court therefore concluded that it had no jurisdiction to conduct a "no further benefit" hearing. In reaching that conclusion, the court wrote:

Congress repealed the YCA without a savings clause. Congress saw fit not to make any provision in the repeal for the continued status of YCA offenders. Congress, obviously cognizant of rulings upholding the district court's right to make a no-benefit finding, repealed those provisions upon which authority to make such a finding was based. For this court to engage in a no-benefit hearing would in effect write into statute a savings clause for those provisions of the YCA which Congress repealed without a savings clause. The YCA has evaporated and any authority or duty which this court had during the dates the Act was in effect is gone. The mere fact that the Department of Justice has administratively determined that the ex post facto clause prohibits it from dismantling the infrastructure set up to accommodate sentencing under the YCA has no bearing upon the issue before this court. Whether it is proper for the Bureau of Prisons to maintain that infrastructure is not before this court. The court can find no authority to act in any way under the YCA.

655 F.Supp. at 1256.⁵

As noted in Davison, when Congress repealed 18 U.S.C. §§ 5010-16 in 1984, Congress did not enact any specific savings clause. As part of the Sentencing Reform Act of 1984, Congress did, however, provide for a gradual five-year phasing-out of certain functions of the Parole Commission. That phasing-out does affect the powers of the Parole Commission in connection with 18 U.S.C. §§ 5017-20.⁶ Section 235(b)(1)(E) of the 1984 Act is labelled "Savings Provisions," but may or may not constitute a true savings clause.⁷ However, that issue need not be resolved in this case, because the general savings clause in 1 U.S.C. § 109 is applicable.⁸

1 U.S.C. § 109 states as follows:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

The words "penalty, forfeiture, or liability" as they appear in that statute refer to "all forms of punishment" for crime. United States v. Reisinger, 128 U.S. 398, 403, 9 S.Ct. 99, 101, 32 L.Ed. 480 (1888) (quoting United States v. Ulrici, 28 F.Cas. 328, 329 (No. 16,594 (1875))). See also Reisinger, 128 U.S. at 401-02, 9 S.Ct. at 100-01; Warden v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 2537, 41 L.Ed.2d 383 (1974).

The specific issue before this Court is whether a "no further benefit" finding pursuant to 18 U.S.C. § 5010(d) is a "penalty, forfeiture, or liability" within the meaning of 1 U.S.C. § 109. Even though a "no further benefit" finding is a central and unique part of YCA punishment, counsel for Jackson argues that such a finding is simply a remedy or a procedure, similar to the requirement that a presentence report be given to a defendant ten days prior to sentencing,⁹ and that because a "no further benefit" finding is not itself a substantive penalty, 1 U.S.C. § 109 does not apply to it. See Marrero, 417 U.S. at 661, 94 S.Ct. at 2537; see also, e.g., United States v. Mechem, 509 F.2d 1193 (10th Cir.1975) (per curiam); United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977). The determination of "whether a statutory change affects `penalty' or `procedure' ... is preliminary to application of the general savings clause." Blue Sea Line, 553 F.2d at 449. In addition:

Statutory language and legislative intent may be consulted in search of implications that Congress was either making a procedural change or reassessing the substance of criminal liability or punishment.

... Cases will arise in which it may fairly be said that a statutory change both alters a penalty and modifies a procedure. In determining whether the general savings clause applies in such cases, ... a court may inquire into the predominant purpose of the change—procedural modification or penal reassessment.

Id. at 449-50 (emphasis added).

Both the original purpose of the YCA— and the 1984 statutory changes—indicate strongly that repeal of section 5010(d) affected a substantive penalty. In enacting the YCA, Congress intended that "rehabilitative treatment should be substituted for retribution as a sentencing goal." Durst v. United States, 434 U.S. 542, 545, 98 S.Ct. 849, 851, 55 L.Ed.2d 14 (1978) (footnote omitted). See also Ralston v. Robinson, supra; Dorszynski v. United States, 418 U.S. 424, 432-34, 94 S.Ct. 3042, 3047-48, 41 L.Ed.2d 855 (1974). In Ralston, the Supreme Court pointed out that the YCA limited prison officials in connection with their discretionary imposition of treatment of a youth offender, and specifically provided for a different rehabilitative approach to be utilized. See Ralston, 454 U.S. at 206-10, 214-15, 102 S.Ct. at 242. A "no further benefit" finding enables the Bureau to transfer a sentenced offender from a YCA setting to a federal adult correctional institution in which the offender is not entitled to have the benefit of the same type of rehabilitative treatment, philosophy and programs which are required in a YCA institution....