The opinion of the court was delivered by: SHERIDAN
Preston DeWitt Wiley, a federal prisoner presently incarcerated at Allenwood Federal Prison, Montgomery, Pennsylvania, filed a petition for a writ of habeas corpus in which he challenges the regulations and procedures utilized by the United States Board of Parole in determining parole eligibility and in which he contends that the Board's decision denying him his immediate release on parole is unlawful. A petition for a writ of habeas corpus is a proper method for challenging denial of parole. 28 U.S.C.A. § 2241; Lupo v. Norton, D. Conn.1974, 371 F. Supp. 156.
Petitioner was convicted of misapplying monies of the Office of Economic Opportunity and sentenced to eighteen months imprisonment. On February 7, 1974, petitioner became eligible for a parole hearing,
for which he applied. After a hearing the Board denied petitioner's parole application and continued him to the expiration of his sentence.
Thereafter petitioner filed this action in which he contends that the Board's denial of parole constitutes a modification of the sentence imposed by the district court, that he qualifies for parole under the statutory criteria embodied in 18 U.S.C.A. §§ 4202, 4203, and that the Board's published parole decision-making guidelines, 28 C.F.R. § 2.52, 38 Fed.Reg. 31942 (1973), now embodied in 39 Fed.Reg. § 2.20,
are inconsistent with the statutory criteria for parole set forth in 18 U.S.C.A. §§ 4202, 4203 and therefore unlawful. In addition, petitioner asserts that the procedures of the Board fail to comply with the due process clause of the fifth amendment for the following reasons: (1) no access by inmates to the materials and information the Board relies on to make its parole decisions; (2) no chance to rebut the information relied on by the Board or to challenge its accuracy; (3) the lack of an evidentiary or adversary hearing, with the right to present favorable evidence. Petitioner's contentions will be considered seriatim.
The Board of Parole is an independent statutory agency to which Congress granted broad discretionary powers in parole eligibility determinations, as is evidenced by the following statutory language:
"If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, 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.A. § 4203(a).
Under this section, it is clear that release on parole is a matter of legislative grace, not of right, and that the determination of eligibility for parole is wholly within the discretion of the Parole Board. United States v. Frederick, 3 Cir. 1968, 405 F.2d 129. The courts are without power to grant a parole or to determine judicially suitability for parole. Scarpa v. United States Board of Parole, 5 Cir. 1973, 477 F.2d 278 (en banc), vacated and remanded for consideration of question of mootness, 1974, 414 U.S. 809, 94 S. Ct. 79, 38 L. Ed. 2d 44; Barradale v. United States Board of Paroles and Pardons, M.D.Pa.1973, 362 F. Supp. 338.
Petitioner argues that since he is now eligible for parole consideration, and in view of what he believes is a good institutional record, he has a legal right to parole and hence the denial thereof constitutes "resentencing" by the Board. Moreover, petitioner contends that the Board cannot rely on the nature or seriousness of the offense in making its parole determinations, a factor which is inherently a part of the Board's published parole decision-making guidelines, which classify crimes according to the degree of severity of the offense behavior and indicate the customary range of time to be served before release, 28 C.F.R. § 2.52, 38 Fed.Reg. 31942 (1973); 39 Fed.Reg. § 2.20. Thus, petitioner claims that these paroling guidelines which the Board uses as an aid in making its decisions, are illegal because the Board's consideration of the seriousness of the offense and the effect parole of a convicted offender may have on the deterrence of criminal conduct are factors the Board cannot rely on, the sentencing court having already taken them into account. Therefore, petitioner concludes that the Board cannot rely on "depreciating the seriousness of the offense" as a reason for denial of parole.
Petitioner's claims are without merit. As noted previously, 18 U.S.C.A. § 4203 provides that the Board in its discretion may release a prisoner on parole if it appears there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if the Board believes such release is compatible with the welfare of society. The seriousness of the offense and the effect parole of an offender may have on deterrence of criminal conduct, embodied in the "depreciating the seriousness of the offense" reason given by the Board for denial of parole, clearly are a proper basis for denying parole since these factors are relevant to and can be determinative of the question of whether the offender's release is compatible with the welfare of society, a criterion specifically mandated by 18 U.S.C.A. § 4203. Thus, the Board is free to rely in whole or in part on these factors in making an adverse parole determination.
The Board's paroling policy guidelines contained in Section 2.52 and now embodied in 39 Fed.Reg. § 2.20 take into account the statutory criteria for parole consideration in the following manner. The offender characteristics or risk scale relates to the standard set forth in 18 U.S.C.A. § 4203(a) that there must be a reasonable probability that the prisoner will live and remain at liberty without violating the law. The offense severity scale relates to the standard embodied in 18 U.S.C.A. § 4203(a) that the release of an inmate will not be incompatible with the welfare of society. The consideration of institutional performance relates to the requirement of 18 U.S.C.A. § 4202 that the prisoner must have observed the rules of the institution in which he has been confined. It should be emphasized that these guidelines were promulgated as just that -- merely guidelines, and the Board is free to render a decision either above or below the guideline range where in the opinion of the Board the circumstances warrant. For example, the Board may reach a decision below or above the guidelines if the prisoner has an exceptionally good or poor institutional record, or if the Board feels that the clinical parole risk prognosis is substantially better or worse than indicated by the offender characteristics score of the inmate. Thus, while the guidelines structure the discretion of the Board within the broad statutory mandate, the Board remains free to consider each individual case on its merits. The court holds that the Board's published guidelines for parole decision-making are consistent with the general statutory criteria for parole embodied in 18 U.S.C.A. §§ 4202, 4203 and hence are valid.
The limited review of the Board's decision undertaken above is based on the principle that a discretionary decision cannot stand if it is shown to be based on a reason that is outside the scope of statutory authority. Battle v. Norton, D.Conn.1973, 365 F. Supp. 925; cf. Kent v. Dulles, 1958, 357 U.S. 116, 128-129, 78 S. Ct. 1113, 2 L. Ed. 2d 1204. Having determined that the criteria relied on by the Board are consistent with the statuary directives, the court emphasizes that it is not the function of the judiciary to review generally the discretion of the Board or to review the credibility of reports and information received by the Board in making its decision. Tarlton v. Clark, 5 Cir. 1971, 441 F.2d 384, cert. denied, 1971, 403 U.S. 934, 91 S. Ct. 2263, 29 L. Ed. 2d 713. The court will not substitute its judgment for that of the Board as to whether the rehabilitation of the inmate and the welfare of society would be best served by permitting him to serve his sentence beyond the confines of prison rather than by being continued in physical confinement. In making that determination the Board must consider many factors of a non-legal nature, such as psychiatric reports with respect to the prisoner, his mental and moral attitudes, his vocational education and training, the manner in which he has used his time in prison, his physical and emotional health, his intra-personal relations with the prison staff and other inmates, and the prisoner's parole plan -- his employment and residence arrangements and the environment to which he plans to return. The Board possesses the expertise and experience for ascertaining which factors are determinative of the unique situation presented by each applicant. Scarpa v. United States Board of Parole, supra. The statute, 18 U.S.C.A. §§ 4202, 4203, expressly gives the Board broad discretion in determining parole eligibility in recognition of the fact that many variables, some of an intangible and subjective nature, go into making an informed and intelligent parole decision. In short, in providing for parole, Congress realized the difficult and imprecise nature of parole prognosis.
Therefore, absent an abuse of discretion amounting to the denial of a constitutional right, and absent a decision that is clearly inconsistent with the broad statutory criteria, a court will not review the Board's discretion in denying an application for parole. The courts should not serve as a super-Parole Board.
There remains petitioner's contention that the Board's mode of operation violates the due process clause of the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due.
In Morrissey v. Brewer, 1972, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee's liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee's arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing ...