Warren v. U.S. Parole Commission
| Decision Date | 18 February 1976 |
| Docket Number | No. 75-1167,No.838,No.94-233,No. 79-2200,90,94,No. 44,No. 79-2550,No. 92,79-2200,79-2550,94-233,44,92,838,75-1167 |
| Citation | 212 U.S.App.D.C. 137,659 F.2d 183 |
| Parties | , 212 U.S.App.D.C. 137 Charles R. WARREN, Appellant, v. UNITED STATES PAROLE COMMISSION, Appellee. . Argued 1 Oct. 1980. Decided 1 July 1981. Appeal from the United States District Court For the District of Columbia (D.C. Civil Action). Rachael Schwartz, * Student Counsel, with whom Michael E. Geltner and Larry J. Ritchie, Washington, D. C. (appointed by the Court) were on the brief, for appellant. Ina Strichartz, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. and John R. Fisher and John A. Terry, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Before ROBINSON, Chief Judge, WILKEY and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circuit Judge GINSBURG. WILKEY, Circuit Judge: The resolution by this and other courts of the question posed by this case may significantly affect the prospects for ongoing reform of the nation's parole systems. Like most of its state counterparts, the United States Board of Parole operated for many years under a statutory charter granting it almost unlimited and unreviewable discretion in parole decisionmaking. Because the Board was composed of less than ten members, its day-to-day decisions were of necessity largely made by its hearing examiners throughout the country. These decisions, undertaken without the protection of much in the way of either procedural safeguards or substantive guideposts, were often criticized as erratic and unfair and the system was widely perceived as ripe for reform. As a consequence, the Board instituted major reforms which Congress subsequently ratified in 1976 by passing the Parole Commission and Reorganization Act. The new system not only operates with much enhanced procedural regularity, but enables the Board, now renamed the Parole Commission, to direct and channel the exercise of discretion by its hearing examiners by means of substantive guidelines which suggest the period of confinement |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court For the District of Columbia (D.C. Civil Action No. 79-2550).
Rachael Schwartz, * Student Counsel, with whom Michael E. Geltner and Larry J. Ritchie, Washington, D. C. (appointed by the Court) were on the brief, for appellant.
Ina Strichartz, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. and John R. Fisher and John A. Terry, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before ROBINSON, Chief Judge, WILKEY and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
The resolution by this and other courts of the question posed by this case may significantly affect the prospects for ongoing reform of the nation's parole systems.
Like most of its state counterparts, the United States Board of Parole operated for many years under a statutory charter granting it almost unlimited and unreviewable discretion in parole decisionmaking. Because the Board was composed of less than ten members, its day-to-day decisions were of necessity largely made by its hearing examiners throughout the country. These decisions, undertaken without the protection of much in the way of either procedural safeguards or substantive guideposts, were often criticized as erratic and unfair and the system was widely perceived as ripe for reform.
As a consequence, the Board instituted major reforms which Congress subsequently ratified in 1976 by passing the Parole Commission and Reorganization Act. The new system not only operates with much enhanced procedural regularity, but enables the Board, now renamed the Parole Commission, to direct and channel the exercise of discretion by its hearing examiners by means of substantive guidelines which suggest the period of confinement the Board considers usually to be appropriate for convicts sharing similar criminal and community backgrounds.
The appellant here challenges the operation of this system by suggesting that the manner in which the parole authorities exercise their discretion is so central a determinant of his punishment that the ex post facto clauses of the Constitution prohibit parole decisions on any basis other than that used by the Parole Board at the time of his crime. In particular, the appellant protests the application of the new guidelines, promulgated well after his crime, conviction and sentencing, to assist the Commission in deciding whether he should be reparoled after he was found guilty of fresh crimes committed while he was on parole, and then reincarcerated.
A ruling favorable to the appellant would imply that the guidelines now being used by the Commission are annexed to the sentence of prisoners convicted now and in the future. This would mean that, contrary to the will of Congress, the guidelines could not be altered unless the Commission were willing to operate under a multiplicity of standards applicable to individual convicts depending on the dates of their crimes.
We do not believe the ex post facto clause demands such rigid application.
After pleading guilty to armed bank robbery, Charles R. Warren was sentenced in March 1969 to twenty years in federal prison, but seven years later, in April 1976, was released on parole. While at liberty he not only committed another armed bank robbery but was also convicted of shoplifting. So in July 1977 his parole was revoked, and he returned to prison. He now appeals the district court's summary dismissal of a habeas corpus petition he brought in forma pauperis. The district court invoked 28 U.S.C. § 1915(d), which authorizes such a disposition whenever the court is "satisfied that the action is frivolous or malicious."
In his petition to the district court Warren raised three issues. Two are without substance; they were properly dismissed by the district court. One of these two claims that certain parole hearings were held "out-of-time" Warren has not pursued on appeal. The other that Warren was denied due process when he was not permitted a fellow inmate's assistance throughout one of his parole hearings runs afoul of a recent Supreme Court case establishing that an inmate does not have a right to assistance at a parole release hearing. 1 To escape the force of that authority Warren has attempted to argue that the parole hearing in question, although it was held more than a year after the revocation of his parole, somehow constituted a revocation hearing rather than a release hearing. We find no merit in this contention, and pursue it no further here.
Warren's remaining claim is his ex post facto claim, which is hardly "frivolous." It is based on the fact that when Warren was first convicted of bank robbery in 1969 the United States Board of Parole was still exercising its discretion without reference to any explicit standards other than its statutory mandate; 2 not until 1973 did the Board begin using a set of guidelines distilled from its prior practice. 3 But those guidelines, adopted four years after Warren was first convicted, are now being used to determine his eligibility for rerelease after the revocation of his parole. Warren claims that the application to his case of guidelines promulgated after his first conviction violates the federal ex post facto clause of the Constitution. 4
Warren's appeal raises this question regarding the reach of the ex post facto prohibition for the first time in this Circuit. The Second, 5 Sixth, 6 Seventh, 7 and Ninth Circuits 8 have rejected similar claims, but in a somewhat analogous case the Third Circuit ruled otherwise. 9 The Supreme Court granted certiorari to consider the Third Circuit decision, but ultimately remanded the case without reaching the issue. Thus Warren's claim is certainly at least colorable. We conclude that the district court acted improperly in dismissing the appellant's petition under the authority of 28 U.S.C. § 1915(d). Were material facts at issue, we would be required to remand this case to the district court for the required hearing. That step is unnecessary, however, because we conclude that the petitioner's claim, though not frivolous, is without merit as a matter of law. We therefore affirm.
Before determining whether the ex post facto clause applies to Warren's case, it is helpful briefly to consider the nature of the ex post facto guarantee. The Constitution prohibits both Congress and the various states from enacting ex post facto laws. 10 The scope of these provisions was clarified in 1798 when the Supreme Court first considered the reach of the ex post facto clauses in the much cited case of Calder v. Bull. 11 Our understanding of the basis of the prohibition against ex post facto laws has changed remarkably little since that time.
In Calder, Justice Chase, noting that the expression "ex post facto" "had been in use long before the revolution, and had acquired an appropriate meaning, by legislators, lawyers and authors," 12 summarized what manner of laws he understood to be "within the words and the intent of the prohibition": 13
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. 14
Having thus set forth his understanding of the scope of the ex post facto prohibition, 15 Justice Chase indicated why the clauses were included in the Constitution. The prohibition against the ex post facto laws, he wrote,
very probably arose from the knowledge, that the parliament of Great Britain claimed and exercised a power to pass such laws .... These acts were legislative judgments; and an exercise of judicial power.... With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment and vindictive malice. To prevent such and similar acts of violence and injustice, I believe, the federal and state legislatures were prohibited from passing any ... ex post facto law. 16
Justices Paterson and Iredell, in their own separate opinions in Calder v. Bull, made clear their agreement with Justice Chase that the ex post facto provisions were motivated by a dreary history of legislative abuses. In Justice Paterson's words: "The historic page abundantly evinces, that the power of passing such laws should be withheld from legislators; as it is a dangerous instrument in the hands of bold, unprincipled, aspiring and party men, and has been too often used to effect the most detestable purposes." 17 Justice Iredell enlarged at some length on the evils traceable to ex post facto enactments:
The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. Rival factions, in their efforts to cross each other, have superseded all the forms, and suppressed all the sentiments of justice; while attainders, on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph. The temptation to such abuses of power is unfortunately too alluring for human virtue; and therefore, the framers of the American constitutions have wisely denied to the respective legislatures, federal as well as state, the possession...
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