even if a prospective reparolee's revocation hearing had all the characteristics of an initial hearing, § (B)(4)(d) would not apply. This seems to be what § (B)(4)(d), in conjunction with the guidelines as a whole, states. It is also how the Parole Commission interpreted the regulation. It is not an irrational or arbitrary interpretation. Hence, I hold that the interpretation given § (B)(4)(d) by the Parole Commission is proper.
But now the inquiry is whether § (B)(4)(d), as interpreted and applied by the Parole Commission, has denied petitioner the equal protection of the laws. I believe that it has.
A threshold question is whether the concept of equal protection, embodied in the Fourteenth Amendment, is applicable to the United States government or its agencies. The Fourteenth Amendment only applies, on its face, to the states. But it has been held, by the United States Supreme Court, that if a classification would not be valid under the equal protection clause of the Fourteenth Amendment, it is also not consistent with the due process requirement of the Fifth Amendment. See Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974); Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971). Hence, the concept of equal protection is, in effect, embodied in the Fifth Amendment and applicable to the United States government and its agencies.
In order for a governmental regulation not to offend the concept of equal protection, it must be reasonable, not arbitrary, and must rest upon some ground of difference which has a substantial and fair relation to the point of the regulation, so that all persons similarly situated shall be treated alike. See Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S. Ct. 560, 64 L. Ed. 989 (1920); Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).
Since no suspect class is involved here, the standard to be applied, in order to determine whether the distinction drawn by § (B)(4)(d) between those in petitioner's position and those who have had an initial hearing is not offensive to the equal protection clause, is whether there is any rational basis by which it can be seen that the distinction furthers some legitimate governmental purpose. Cf. McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973). Or, are there characteristics peculiar to the group to which petitioner belongs which could rationally explain the regulation's different treatment of the two groups? See Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).
So the court must first determine what the objective of § (B)(4)(d) is. Then the inquiry is whether this objective is furthered by the distinction between petitioner and those who have had an initial hearing, or whether petitioner is differently situated from those who have had this initial hearing, or whether people similarly circumstanced are arbitrarily being treated differently.
The purpose of § (B)(4)(d) is apparent on its face. The idea is that it would be unfair for a prisoner to have had his guideline range
and the factors relating to when parole should be granted discussed at a prior hearing, and then to have his guideline range increased, unrelated to any behavior on his part. This notion of fairness would certainly seem to be a legitimate government interest. Now the question is whether there is a rational reason to exclude petitioner from the application of this policy or whether petitioner's particular situation would rationally explain his different treatment.
The threshold question is whether petitioner's first institutional hearing, before the enactment of any reparole guidelines, was the functional equivalent of an initial hearing.
As stated supra, at an initial hearing the examiners discuss a prisoner's guideline range, his institutional conduct, and any other relevant matter. At a revocation hearing,
the main concern is whether parole has been violated. It seems obvious that petitioner's first institutional hearing had the characteristics of both a revocation hearing and an initial hearing. While his behavior which constituted the parole violations was discussed and parole was revoked, also discussed were his institutional behavior, his release plans, and the amount of institutional time which should be served to satisfy the "accountability."
Respondent argues that since no reparole guidelines were in effect at the time of petitioner's first institutional hearing and hence they could not be discussed, the rationale behind § (B)(4)(d) would not be furthered by its application to petitioner.
The argument is that if an actual guideline range is not discussed there is not the same expectation of possible release as when a guideline range is discussed. Hence the notion of fairness embodied in § (B)(4)(d) would not be implicated. But when petitioner was told that there was an accountability term of at least two years overall for his offense he was being told the equivalent of a guideline range. The notion of accountability is a concept embodied in the guidelines. The guidelines appear to represent the movement away from parole being based on institutional behavior and rehabilitation and towards parole being decided according to accountability, retribution and deterrence. The welfare and safety of society is a prime ingredient. See deVyver v. Warden, 388 F. Supp. 1213 (M.D.Pa.1974). Although petitioner was not given an upper range, he was being told, in effect, that his guideline range was somewhere in the vicinity of at least two years. As far as I can see, in this regard he was in the same situation as a prisoner who had received an initial hearing.
Given the fact that he was in the same situation as a prisoner who had received an initial hearing, does the fact that he is a prospective reparolee, rather than a prospective parolee, provide a rational reason to exclude petitioner from the application of § (B)(4)(d)? No persuasive reason has been given to support such a position. It might be rational to treat a prospective reparolee harsher than a prospective parolee because he or she has already violated parole, by, for instance, requiring a longer institutional term. However, it does not follow that it would be rational to treat a reparolee unfairly. It has been decided, by the Parole Commission, that it is unfair to apply the Oct. 1976 guideline ranges after a hearing has been had discussing other ranges with a prisoner. I can think of no rational reason for excluding petitioner from the application of § (B)(4)(d). Such exclusion was a violation of equal protection.
As to petitioner's last contention, that the Parole Commission acted arbitrarily and capriciously by not paroling him at his second institutional hearing, I find it has no merit. This court does not sit as a "super parole board." Petitioner's first institutional hearing simply gave him a set-off date for review later in the year, it did not set a parole date for December of 1976. As such, the simple fact that parole was not granted at that hearing could not, in and of itself, automatically be considered an arbitrary act. This is, of course, a different question from whether it was a denial of equal protection to exclude petitioner from the application of § (B)(4)(d).
Having decided that petitioner has been denied the equal protection of the laws, the question now is, to what relief is petitioner entitled? If petitioner's first institutional hearing had been after the May 1976 promulgation of reparole guidelines, then it would be obvious that they be applied. However, that was not the case. As stated above, petitioner argues that he should have been paroled at his second institutional hearing, for this was when the two-year accountability for the offense expired. Respondent notes that at least two years was the stated accountability term. I agree that two years is not the same as at least two years. Two years was simply a statement of a minimum accountability term. But it also clearly infers that there is a maximum term contemplated somewhere in the vicinity of two years. All the guideline periods for adults not covered by the Narcotic Addict Rehabilitation Act cover a range of from 4 months to 12 months. Given that ranges do not exceed one year, petitioner's highest maximum accountability parole violator term, absent factors which, in a guideline situation, would call for a decision outside the guidelines, would seem to be three years. And, since at petitioner's second institutional hearing it was stated that a decision outside the guidelines was unwarranted, this would seem to be a rational approach. However, Congress has invested the Parole Commission with broad discretion. It is not up to the District Court to make its own parole judgments. See Zannino v. Arnold, 531 F.2d 687 (3rd Cir. 1976).
It will be ordered that a writ of habeas corpus shall issue, releasing petitioner from institutional custody, unless within 30 days petitioner is given a new parole hearing. At this new hearing the new reparole guidelines, in effect from October 4, 1976 until the present, may not be applied to petitioner.