in the "very high" category. The notice of action from the National Appellate Board corrected this mistake and added a sixth element, that release would "depreciate the seriousness of the offense."
In the ordinary case, where potentially applicable guidelines exist and where a decision is reached to apply those guidelines after a finding that no special aggravating or mitigating factors are present, I am satisfied that a notice of action containing the first four elements listed supra (the category of offense behavior, the salient factor score, the period of incarceration, and the applicable guidelines period) followed by the conclusion that a decision outside the guidelines was not warranted would constitute an entirely sufficient notice. See deVyver v. Warden, 388 F. Supp. 1213, 1219 (M.D.Pa.1974) (Sheridan, C.J.); Lupo v. Norton, 371 F. Supp. 156, 162 (D.Conn.1974) (Newman, J.). The guidelines, applied in the great majority of cases,
provide a safeguard against arbitrary action, and, when an applicant feels that unusual mitigating factors are present, the applicant can argue on appeal in reference to the ordinary case and the guidelines. Clearly, in cases where an applicant is continued beyond a guideline period applicable to his category of offense behavior, there must be a reason for that action beyond the four elements supra and that reason should be stated in the notice to facilitate the appeal provided by regulation. See Lupo, 371 F. Supp. at 163. For prisoners such as petitioner who are in the "greatest" category and who, in effect, are continued beyond the guideline period for the "very high" category, an analogously required reason must exist for such action. See Bowman v. United States Board of Parole, 411 F. Supp. 329, 330 (W.D.Wis.1976). Respondents argue that the seriousness of the offense, viz. that a "life has been taken," is such a reason.
The question of whether the "seriousness of the offense" is an understandable and sufficient reason for the denial of parole has been faced by this Court before. See Soloway v. Weger, 389 F. Supp. 409 (M.D.Pa.1974). In Soloway I held that "depreciating the seriousness of the offense" would be an adequate reason only if it could be clearly ascertained that the specific circumstances of the crime and petitioner's participation in it, and not merely the type of crime generally, was the reason for the denial of parole. See also Stassi v. Hogan, 395 F. Supp. 141 (N.D.Ga.1975); Billiteri v. United States Board of Parole, 385 F. Supp. 1217 (W.D.N.Y.1974); Craft v. Attorney General, 379 F. Supp. 538 (M.D.Pa.1974). The problem with the statement was its ambiguity; were it clear that specific circumstances had been relied upon, I stated that I would not "second guess" the parole decision. Cf. Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976). But since the decision could have been based merely upon the type of offense, it could not be ascertained whether the Commission acted lawfully and nonarbitrarily.
A similar problem exists when the "seriousness of the offense" generally is used as a reason for the denial of parole to a prisoner, such as petitioner, in the "greatest" category. Such a general reason would be sufficient were petitioner at or below the guideline period for the "very high" category; in such circumstances, the offense itself, being in the "greatest" category and more severe than those offenses in the "very high" category, could be the reason for the denial of parole and could in effect constitute aggravating circumstances justifying continuation to the end of the "very high" guideline range.
However, once a "greatest" prisoner is beyond the "very high" guidelines, the offense generally, as indicated by statements that release would "depreciate the seriousness of the offense," ceases to be an adequate reason. Bowman v. United States Board of Parole, 411 F. Supp. 329, 330 (W.D.Wis.1976). See Reo v. Sigler, Civil No. N-76-194 (D.Conn., Sept. 22, 1976) (appended to respondents' answer) (Zampano, J.) (reasons relating to specific circumstances of the crime held adequate). Cf. Garcia v. United States Board of Parole, 409 F. Supp. 1230, 1236-39 (N.D.Ill.1976) (general nature of offense inadequate to explain parole denial for prisoner with excellent record).
Similar to the requirement in Soloway, what is needed once a "greatest" prisoner is continued beyond the "very high" guideline period is a statement of reasons showing that the Commission has considered the specific circumstances of the prisoner's crime and has, in the exercise of its discretion, used those circumstances to determine specifically where, between the maximum for the "very high" category and mandatory release, the prisoner should be placed. Since there was no statement of reasons indicating why the Commission found that petitioner's specific criminal actions justified denial of parole and continuation till February, 1978, petitioner was precluded from effectively arguing an appeal. Essentially, the Commission told petitioner that he had been convicted of murder,
clearly a severe offense. Since he was obviously unable to argue that he had not been convicted of murder, he could not argue on the basis of the statement of reasons that his incarceration was too long. See United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 928-30 (2d Cir.), vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974).
Were I merely to require that additional reasons be supplied, respondents could no doubt insure that unhampered judicial review over the decision-making process would be possible.
However, such relief would not remedy the requirement under the Commission's own regulations that petitioner be afforded an effective opportunity to appeal a denial of parole administratively. Nevertheless, while the Commission has discretion to schedule a hearing when warranted, from the record there appears to be no need to order an additional in-person parole hearing. The issue in this case upon which relief will be granted relates to the adequacy of the statement of reasons. Therefore, unless the Parole Commission for its own reasons promptly schedules a hearing, the order in this action will be limited to the requirement that a parole decision be reached as evidenced by an adequate statement of reasons, that this statement be supplied petitioner, and that he be afforded an opportunity to appeal an adverse decision. Crucial here is that the Commission consider all the relevant factors in the record,
see United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 934 (2d Cir.), vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 42 L. Ed. 2d 289, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974), and, if parole is denied because of the specific circumstances of his offense, that these specific circumstances be cited in the statement of reasons. Since petitioner has been confined beyond the guideline range applicable to the "very high" category of prisoners, and since there is no guideline range applicable to prisoners in the "greatest" category, the general "seriousness of the offense" would not be an adequate reason.
NOW, this 2nd day of February 1977, in accordance with the memorandum this day filed, it is hereby ordered that petitioner's claim that the denial of parole defeated the reasonable sentencing expectations of Judge Oren R. Lewis is dismissed for failure to exhaust remedies available under 28 U.S.C. § 2255. And further it is ordered that, unless the Parole Commission decides to conduct a new in-person hearing within thirty (30) days to consider petitioner's parole application, the Commission promptly reconsider the application on the record, provide petitioner with an adequate statement of reasons for the decision within thirty (30) days, and permit petitioner to appeal from the decision if adverse.