June 9, 1975) per Nealon, J. It is noteworthy that the Government in Wiley granted the Petitioner's request for an in-person hearing while opposing such a request in the instant case on very similar facts.
I am of the view that an in-person hearing for § 4208(a)(2) prisoners at the one-third point of their sentences is necessary to carry out the intent of 18 U.S.C. § 4208(a)(2).
Kehoe's allegations illustrate why the file review afforded those sentenced under § 4208(a)(2) may result in less "meaningful consideration" than is afforded to those sentenced under 4202. Without the opportunity to appear before the examining panel to support his position, he does not receive the same opportunity a 4202 prisoner has to demonstrate institutional progress. As it happened, Kehoe's institutional achievement report was written by a caseworker unfamiliar with his situation and may have contained inadequate or inaccurate information which Kehoe was not given a personal opportunity to rebut. Kehoe was not permitted to present personally other information in his own behalf. Kehoe did have the opportunity to submit written material to the examining panel for consideration by the panel. See 28 C.F.R. §§ 2.21 and 2.28. This is clearly less "meaningful consideration" than a § 4202 prisoner receives at his one-third point and is therefore insufficient. Garafola v. Benson, supra; Reed v. United States, supra; Bucciano v. Attorney General, supra.
It is argued that requiring another in-person hearing for § 4208(a)(2) prisoners at the one-third point of their sentences would place an additional burden on the already overworked Parole Board. This argument is not persuasive in light of the clear intent of Congress that such prisoners be given more flexible consideration for parole than a regularly sentenced inmate. The fact that § 4208(a)(2) prisoners may be paroled at any time implies a continuing duty on the Board to monitor the progress of such inmates in order to be able to determine when they are ready for release. If more extensive hearings are required of the Board to fulfill this duty, then such hearings must be held.
The in-person hearing required by the Court obviates the need for a decision on Kehoe's other claim that the Board erroneously classified his offense severity as "very high" under 28 C.F.R. § 2.20. At the hearing, Kehoe will be able to present his case for a different classification with whatever supporting evidence he can muster.
Now, therefore, it is ordered that:
A writ of habeas corpus releasing Kehoe from custody will issue unless within thirty days from the date of this Order the United States Board of Parole grants Kehoe an in-person hearing on his request for release on parole.