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October 29, 1982



The opinion of the court was delivered by: HERMAN



 This action was initiated on September 15, 1976 when Plaintiff Geraghty filed a complaint seeking declaratory and injunctive relief in the United States District Court for the District of Columbia. Plaintiff attacked the Parole Commission and Reorganization Act, P.L. 94-233, 18 U.S.C. §§ 4201 et seq. (hereafter referred to as "PCRA"), and the regulations and guidelines promulgated thereunder, 28 C.F.R. § 2.20. The District of Columbia federal court ordered the case transferred to us on November 12, 1976 and we received the file on December 3, 1976.

 Plaintiff Geraghty was convicted in the United States District Court for the Northern District of Illinois of conspiracy to commit extortion, 18 U.S.C. § 1951, and of making false material declarations to a grand jury, 18 U.S.C. § 1623. Geraghty had used his position as a vice squad officer on the Chicago police force to extort money from dispensers of alcoholic beverages. The false declarations concerned his involvement in this shakedown. Geraghty was sentenced to concurrent prison terms on January 25, 1974. His conviction was affirmed in UNITED STATES v. BRAASCH, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S. Ct. 1562, 43 L. Ed. 2d 775 (1975). The sentencing judge later reduced Geraghty's sentence because the parole guidelines would not have indicated parole before the expiration of his sentence. UNITED STATES v. BRAASCH, No. 72 C.R. 979 (N.D. Ill. 1975), appeal dis'd and mandamus denied, 542 F.2d 442 (7th Cir. 1976).

 Geraghty had applied for release by parole and had been denied in January of 1976. He applied again in June of 1976. The Parole Commission decided that a release date outside the parole guidelines did not appear warranted. Geraghty was therefore required to stay in prison, unparoled, until the expiration of his sentence, less good-time credits. Subsequent to the second denial of parole, Geraghty instituted this civil action by filing the complaint. On February 24, 1977, we denied Plaintiff's motion to certify a class, construed the action as a habeas corpus proceeding, and granted the Defendants' motion for summary judgment. GERAGHTY v. UNITED STATES PAROLE COMMISSION, 429 F. Supp. 737 (M.D. Pa. 1977).

 Geraghty, individually and on behalf of the class, appealed. On June 30, 1977, before any briefs were filed with the circuit court, Geraghty had been mandatorily released from prison upon the expiration of his sentence. Both the Third Circuit Court of Appeals and the United States Supreme Court held that they had jurisdiction to hear the appeal of a plaintiff whose request for class certification had been denied, even if the claims of that plaintiff were made moot before the appellate courts could rule on the class issue.

 The Third Circuit Court of Appeals, on March 9, 1978, reversed and remanded the case to us. GERAGHTY v. UNITED STATES PAROLE COMMISSION, 579 F.2d 238 (3d Cir. 1978). The circuit court ruled that this case is not necessarily a habeas corpus action. "The class does not demand that its members be released on parole, but only that the Parole Board not utilize the guidelines in evaluating future parole applications." GERAGHTY, 579 F.2d at 244. The court concluded that this action could properly proceed as an action for declaratory judgment. Id. The court also ruled that we erred in failing to consider sua sponte the possibility of creating subclasses when we denied class certification. Id. at 252-53. Finally, the court decided that certain factual issues existed concerning the guidelines' lawfulness, thereby precluding the entry of summary judgment. *fn1" Id. at 268.

 The United States Supreme Court granted certiorari, 440 U.S. 945 99 S. Ct. 1420, 59 L. Ed. 2d 632 (1979), and, on March 19, 1980, issued its opinion vacating the decision of the Court of Appeals for the Third Circuit and remanding the case for further proceedings. 445 U.S. 388, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). The Supreme Court rejected the circuit court's suggestion that we should have, sua sponte, considered subclasses when we rejected the proposed class. Id. at 408. The Court ruled that, on remand, it was our responsibility to determine the class issue anew and to decide whether Geraghty or some other representative can press the class claims.

 On December 10, 1980, we reviewed Plaintiff's motions to certify a class and to amend the complaint and granted them in part and denied them in part. We certified the following class:


All federal prisoners in the Middle District of Pennsylvania who are, or will become, eligible for parole release under 18 U.S.C. § 4205(a) and who have been, or who will be, denied parole and continued to the expiration of their sentence.

 We limited the class certification to two of the five legal issues advanced by Plaintiff. First, is the PCRA facially unconstitutional? Second, are the regulations promulgated under the PCRA, especially the guidelines for decision-making, arbitrary and unlawful? *fn2"

 By that same December 10, 1980 order, we dismissed the remaining three issues: first, the ex post facto effect of retroactive application of the guidelines to prisoners sentenced before the effective date of the PCRA and its regulations; second, the lawfulness of the application of the guidelines to prisoners in parole considerations; and last, the treatment of prisoners sentenced under 18 U.S.C. § 4205(b) (1) and (b) (2) compared to prisoners who received regular adult sentences and who are eligible for parole after serving one-third of their sentence. On December 30, 1980, an amended complaint was filed, with leave of court, adding Edward Levine as a party plaintiff. We approved the type of notice to the class on May 18, 1981 and held a non-jury trial on June 29, 1981. The transcript, exhibits, and briefs have now been filed and we will proceed to resolve this case on the merits.


 A. General

 In 1910, Congress enacted the first legislation authorizing the parole of federal prisoners. *fn3" Act of June 25, 1910, ch. 387, § 1, 36 Stat. 819. Not until 1973, however, did the federal parole authority establish published regulations governing parole decisionmaking. 38 Fed. Reg. 26,652 (1973). Under the direction of the lead Defendant's predecessor, the United States Board of Parole, an experiment with the use of guidelines for parole decisions was conducted and found to be helpful in resolving problems in the federal parole system. *fn4" In apparent approval of the system devised by the Board of Parole, Congress enacted the PCRA in 1976, creating Defendant United States Parole Commission (hereafter referred to as "the Commission"), 18 U.S.C. § 4202, and requiring it to promulgate guidelines. 18 U.S.C. § 4203(a) (1). *fn5" The statute also mandates parole decisions in accordance with the guidelines promulgated under § 4203(a) (1) unless the Commission determines that there is good cause for departing from the guidelines. 18 U.S.C. § 4206(c). *fn6"

 The general criteria for making parole decisions set forth in the PCRA are as follows:


If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:


(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and


(2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a) (1), such prisoner shall be released.

 18 U.S.C. § 4206. Congress enumerated certain material that the Commission was required to consider, if available and relevant:


(1) reports and recommendations which the staff of the facility in which such prisoner is confined may make;


(2) official reports of the prisoner's prior criminal record, including a report or record of earlier probation and parole experiences;


(3) presentence investigation reports;


(4) recommendations regarding the prisoner's parole made at the time of sentencing by the sentencing judge; and


(5) reports of physical, mental, or psychiatric examination of the offender.

 18 U.S.C. § 4207. Congress also ordered that the Commission consider all additional relevant information that is reasonably available.

 B. Legislative History

 Congress began consideration of parole reform legislation in 1972 with the introduction of House Bill 13118 and Senate Bill S2883. *fn7" Successive sessions of Congress examined proposed amendments to the parole statute. On May 13, 1975, the House Judiciary Committee reported H.R. 5727, accompanied by House Report 94-184. See H.R. REP. NO. 94-184, 94th Cong., 1st Sess. (1975). It was considered and passed by the House on May 21, 1975. 121 Cong. Rec. 15716. The Senate Judiciary Committee reported an amended version of H.R. 5727 on September 11, 1975, accompanied by Senate Report 94-369. See S. REP. NO. 94-369, 94th Cong., 1st Sess. 25, reprinted in [1976] U.S. CODE CONG. & AD. NEWS 335. The amended version was passed by the Senate on September 16, 1975. The House and Senate versions differed markedly in their approaches to the problems of parole reform.

 1. The House Bill

 The most distinguishing feature of the House Bill was the presumption it created in favor of parole at the time of eligibility. Section 4205 of the House Bill provided that


(a) A prisoner shall be released on parole if his record shows that he has substantially observed the rules of the institution in which he is confined on the date of his eligibility for parole, unless. . .


(1) there is a reasonable probability that such prisoner will not live and remain at liberty without violating any criminal law;


(2) there is a reasonable probability that such release would be incompatible with the welfare of society; or


(3) the prisoner's release on such date would so deprecate the seriousness of his crime as to undermine respect for the law.

 H.R. REP. NO. 94-184, supra, at 20 (emphasis added). *fn8"

 In most instances a prisoner would be eligible for parole, at the latest, after he had served one-third of his sentence. *fn9"

 Section 4206 of the House Bill specified the information to be considered in making a parole determination:


There shall be taken into account the factors established by the Commission under section 4202(a) (1) [authorizing the promulgation of general policies, guidelines, rules and regulations]; and


(1) any reports and recommendations which the staff of the facility in which such prisoner is confined may make;


(2) any official report of the prisoner's prior criminal record, including a report or record of earlier probation and parole experiences;


(3) any presentence investigation report;


(4) any recommendation regarding the prisoner's parole made at the time of sentencing by the sentencing judge; and


(5) any reports of physical, mental, or psychiatric examination of the offender.


There shall also be taken into consideration such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available.

 Id. at 21. In addition, the House Report declared: "It is the intent of the Committee that all available information on the efforts that the prisoner may have made to improve his education, skills, or personal attributes be considered by the Commission." Id. at 6. House Bill 5727 also required the Commission to furnish the prisoner with written reasons for its decision, including a summary of the evidence relied upon if parole is denied, and directed the examining panel "to advise the prisoner of what he ought to do to enhance his prospects for parole." Id. at 7. These latter provisions were aimed at providing "an infusion of due process into Federal Parole procedure," to correct a system the House Committee viewed as "the single most inequitable, potentially capricious, and uniquely arbitrary corner of the criminal justice map." Id. at 2.

 2. The Senate Bill

 The Senate Bill, in contrast, was couched in more conservative terms. While acknowledging the criticism directed at the existing parole system and the need for "both the fact and appearance of fairness to all," the Senate Committee on the Judiciary also recognized the importance of balancing concern for equity toward the individual inmate against "responsibility for the protection of the larger society." S. REP. NO. 94-369, 94th Cong., 1st Sess. 25, reprinted in [1976] U.S. CODE CONG. & AD. NEWS 335, 340.

 The Senate Bill eliminated the presumption in favor of parole contained in the House version. Instead, the Senate measure retained existing criteria for making parole decisions at the time of parole eligibility. *fn10" Parole would not be granted unless the Commission determined that, first, the individual had substantially observed the rules of the institution; second, there is a reasonable probability that he will not violate the law on release; and last, his release is compatible with the general welfare of society. S. REP. NO. 94-369, supra, at 344.

 The Senate legislation anticipated the adoption of administrative guidelines to "give definiteness to the indefinite nature of most federal criminal cases -- by reducing the opportunity for sentencing disparity and abuse of discretion and by giving to parole an aura of fairness for both victim and offender." Id. at 340. The Commission was required to meet periodically to establish procedural rules and guidelines for parole determinations "so that the administration of parole throughout the Federal System will be uniform." Id. at 342. The Senate report referred explicitly to the guidelines then in use by the Parole Board as a result of its experimental project. See id. at 340 & 346. *fn11" Although the Senate Committee did not intend the existing guidelines to remain unchanged, id. at 340 & 347, the Committee's comments clearly indicated approval of the system. In the language of the Report,


The guidelines take into account the circumstances of the individual both in his personal life and with respect to the offense which he has committed, as well as measuring the severity of the offense involved so as to significantly reduce the area of discretion which the Parole Commission, in fact, has in any given case.

 Id. at 340.

 Under the Senate Bill, a parole decision pursuant to the guidelines was to be made primarily on the basis of a report prepared by the Bureau of Prisons summarizing the prisoner's criminal and social background, his mental and physical health, and his institutional behavior and participation in institutional programs. Id. at 344. The Commission was also authorized to seek additional information from other government agencies. Id. Once a parole decision was made, the inmate was to receive a written statement of the determination, including an "understandable explanation" of the application of the guidelines, or of the factors causing a determination outside the guidelines. Id. at 346.

  3. The Conference Report

 The bill that emerged from the House-Senate Conference Committee, which eventually became the PCRA, represented a compromise between the diverse positions of the House and the Senate. The Conference Committee chose to delete the House Bill's presumption of parole at eligibility. Instead, the Conference Report adopted the approach of the Senate version, designating the Parole Commission guidelines as "the fundamental gauge" for a parole policy "which seeks to achieve both equity between individual cases and a uniform measure of justice." H.R. CONF. REP. NO. 94-838, 94th Cong., 2d Sess. 6, reprinted in [1976] U.S. CODE CONG. & AD. NEWS 351, 359. *fn12"

 Although the Conferees eliminated language in the Senate Report characterizing parole as "an extension of the sentencing process," compare S. REP. NO. 94-233, supra, at 337 with H.R. CONF. REP. NO. 94-838, supra at 352, they retained the Senate Report's description of the Bill as "having the practical effect of balancing differences in sentencing policies between judges and courts." Id. Determination of the actual length of incarceration of an offender was committed to the discretion of the Parole Commission. Id. The Commission was designated as the agency "responsible for keeping in prison those who because of the need for accountability to society or for the protection of society must be retained in prison." Id. It is the job of the Commission to identify those individuals who are ready to be responsible citizens. Id. The information that the Commission must consider in performing its task was specified -- a list identical to that included in the House Bill *fn13" -- but the weight to be accorded any particular piece of information was a judgment solely within the province of the Commission. Id. at 360.

 The Commission's discretionary power to make parole decisions was limited, however, by permitting decisions outside the guidelines only when there is good cause to do so. The Conference Report interpreted good cause as "substantial reason" and "only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious." Id. at 359. The Conferees further directed that "if decisions to go above or below parole guidelines are frequent, the Commission should re-evaluate its guidelines." Id. at 360.

 In any case in which the decision is outside the guidelines the Commission must provide the prisoner with a written explanation setting forth with particularity the reasons, including a summary of the information relied upon. 18 U.S.C. § 4206(c). In addition, the hearing examiners, when feasible, must advise the prisoner of what he could do to enhance his prospects for parole. 18 U.S.C. § 4208(g). These latter two requirements of the Conference Bill (PCRA) are similar to those found in the House Bill, but the Conference Report added this significant caveat:


"The Conferees intend that this requirement for advice on future parole prospects be narrowly construed. In situations in which the prisoner has been convicted of a serious offense, there may well be nothing that he can do to enhance his parole potential until service of some period of time has been completed. Moreover, promises of parole should not be used to coerce inmate participation in institutional programming.

 H.R. CONF. REP. NO. 94-838, at 362.

 The Conference Bill passed the Senate on March 2, 1976, and the House on March 3, 1976. [1976] U.S. CODE CONG. & AD NEWS 335.


 A. Origin14

 In 1971, the research staff of the National Counsel on Crime and Delinquency, working in conjunction with the United States Board of Parole (hereinafter referred to as the "Parole Board"), began an extensive study of parole decision-making. One portion of the project involved an examination of parole decisions in Youth Correction Act cases *fn15" (hereinafter referred to as "YCA") to determine if certain factors -- offense severity, parole prognosis, institutional program participation and institutional discipline -- could predict parole decision-making. (Transcript at 11-12). *fn16" One of the conclusions of the project was that offense severity and parole prognosis ratings made by members of the Youth Corrections Division of the Parole Board could predict the actual decisions made at initial hearings in YCA cases. *fn17" (Tr. at 12; Plaintiff's Exhibit No. 28, P. Hoffman, Parole Selection Practice: Two Feedback Methods, at 71 (unpublished doctoral dissertation)). *fn18"

 Based on the results of this study, the Parole Board structured its policy for future parole decisionmaking around the two factors of offense severity and risk of recidivism (parole prognosis). (Wilkins Deposition at 89, 98-100; Hoffman Deposition at 125). The Parole Board, however, determined to utilize objective measures of offense severity and statistical predictors of parole prognosis rather than ratings based on subjective, individualized judgments made on a case-by-case basis. *fn19" (Hoffman Deposition at 125). These objective measures would then be applied to the particular facts of each parole case. *fn20"

 On November 19, 1973, the Parole Board issued its first set of parole policy guidelines. 28 C.F.R. § 2.52, as amended 38 Fed. Reg. 31942 et seq. (Nov. 19, 1973). The format was substantially the same as the guidelines currently in use. On May 12, 1976, two days before the PCRA went into effect, the Parole Board published in the Federal Register a set of emergency regulations, including parole guidelines, to implement the PCRA. 41 Fed. Reg. 19326 et seq. (May 12, 1976). The Board also published a notice of proposed rulemaking and invited public comment on the emergency regulations. 41 Fed. Reg. 19341 (May 12, 1976). After opportunity for public comment on the proposed regulations, the Commission published a set of final rules, including guidelines, on September 3, 1976. 41 Fed. Reg. 37316 et seq. (Sept. 3, 1976). The guidelines have been amended numerous times in the intervening years, making various refinements to the system.

 B. Operation

 The guidelines consist of two scales which together determine the range of "customary total time" an inmate must ordinarily serve before parole will be granted. The first scale -- the "offense severity scale" -- categorizes a comprehensive list of federal crimes into seven groupings, ranging from "Low" to "Moderate" to "Greatest II." *fn21" The offenses are ranked without regard to the maximum-minimum penalties set by Congress. For each level of severity, the "offense severity scale" lists four ranges of "customary total time." See Appendix I.

 The second scale, known as the "salient factor scale," measures parole prognosis. The salient factor score is the sum of points assigned by the Commission to seven items in the inmate's background. Five of these items deal with previous criminality, one considers opiate dependence, and one considers recent employment or school attendance. See Appendix II. In theory, the higher the score, the lower the probability of recidivism will be. A clinical evaluation of risk, however, may override the salient factor score. 28 C.F.R. § 2.20(e).

 After determining the offense severity and calculating the salient factor score, the Commission places the particular inmate's score and severity rating on a grid, and thus arrives at the customary total time to be served before release. The customary total time has no relationship to the sentence actually imposed on the inmate, although no inmate can be detained beyond the maximum term set by the court or released before any minimum term the sentencing judge might designate. (Tr. at 48). Furthermore, the guidelines are designed for cases with good institutional adjustment and program progress. 28 C.F.R. § 2.20(b). Substantial observance of institutional rules is a threshold requirement for consideration for parole. 18 U.S.C. § 4206(a).

 The regulations specifically designate the "customary total time" ranges as "merely guidelines." "Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered." 28 C.F.R. § 2.20(c). According to the Commission's own statistics (Plaintiffs' Ex. No. 24, United States Parole Commission Research Unit, Report 18: Workload and Decision Trends 10/74-9/77 (December 1977); Plaintiffs' Ex. No. 25, United States Parole Commission Research Unit, Report 24: Workload and Decision Trends, Fiscal Years 1978-1980 (January 1981)), approximately eighty percent of the decisions at initial hearings fall within the customary total time recommended by the guidelines. *fn22"


 A. Validity of the Guidelines

 Plaintiffs attack the guidelines on the ground that they violate the PCRA in the following particulars:


First, rehabilitation and institutional behavior are not afforded any significant weight in the decision to grant parole; *fn23"


Second, the Commission may disregard the sentence actually imposed; and


Last, the Commission has devised its own system of measuring accountability. *fn24"

 1. Rehabilitation and Institutional Performance

 It is axiomatic that in considering the validity of any regulations promulgated under a statute, one must first look to the language of the statute itself. BLUE CHIP STAMPS v. MANOR DRUG STORES, 421 U.S. 723, 756, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975). Our initial analysis, therefore, must juxtapose the Plaintiffs' contentions against the pertinent provisions of the PCRA.

 Plaintiffs claim that in the PCRA Congress "has explicitly directed" that rehabilitation and institutional behavior "remain central in parole decisionmaking." (Plaintiffs' Post-Trial Brief at 29). They assert that the statutory language is not consonant with the elimination of rehabilitation as the primary focal point in the parole process, and does not authorize the Commission to consider institutional behavior only as a negative factor.

 We cannot agree, however, that the statute on its face places its primary emphasis on the rehabilitation of the inmate. To the contrary, Section 4206 mentions several factors that must be included in the review of every prisoner's case: substantial adherence to the rules of the institution, the nature and circumstances of the offense, the history and characteristics of the prisoner. Thus, "Section 4206 does not state that good institutional adjustment is a major factor in determining whether to parole, but rather only one of many factors." HAYWARD v. UNITED STATES PAROLE COMMISSION, 659 F.2d 857, 861 (8th Cir. 1981), cert. denied, 456 U.S. 935, 102 S. Ct. 1991, 72 L. Ed. 2d 454 (1982).

 Furthermore, the only explicit reference to institutional behavior in the statute is phrased in terms of a prerequisite to parole, that is, " if an eligible prisoner has substantially observed the rules of the institution. . . ." 18 U.S.C. § 4206(a) (emphasis added). This language would appear to sanction the use of institutional performance as a negative factor. We hesitate to find, however, that the statute excludes the possibility of a positive use for the inmate's institutional record. Section 4207 requires the Commission to consider, inter alia, "reports and recommendations which the staff of the facility . . . may make." 18 U.S.C. § 4207(1). Reading this section of the statute together with § 4206, therefore, we think that the inmate's institutional behavior is a part of the "history and characteristics of the prisoner" that must be reviewed by the Commission.

 Plaintiff argues that since positive information regarding institutional behavior is not taken into account in calculating the "salient factor score," and the initial hearing is held within 120 days of incarceration, 28 C.F.R. § 2.12(a), the inmate's record at the institution and his progress toward rehabilitation have a negligible impact. See MOORE v. NELSON, 611 F.2d 434, 438 n.8 (2d Cir. 1979). We note, however, that a clinical evaluation of risk may override the salient factor score, 28 C.F.R. § 2.20(e), and that the Commission may depart from the guidelines when there is "good cause" to do so. 18 U.S.C. § 4206(c). Moreover, at subsequent hearings "significant developments or changes in the prisoner's status" are taken into consideration. 28 C.F.R. § 2.14(a). Under 28 C.F.R. § 2.14(a) (2) (ii), a presumptive release date may be advanced for "superior program achievement." Id. *fn25" See also 28 C.F.R. § 2.60.

 While we think that the role played by institutional factors under the guidelines is entirely consistent with the language of the PCRA on its face, we recognize that regulations such as these may fulfill the letter of the legislation, yet simultaneously contravene the spirit of the statute. HOLY TRINITY CHURCH v. UNITED STATES, 143 U.S. 457, 459, 36 L. Ed. 226, 12 S. Ct. 511 (1892). A careful analysis of the legislative history is in order, therefore, to remove any lingering doubts about the validity of the guidelines in regard to this issue.

 We have previously set forth the sequence of legislative events and summarized the significant reports accompanying them. *fn26" The entire tenor of the original legislation passed by the House, and the report accompanying the bill, indicates an emphasis on the concerns of the individual inmate. Discussing the information that must be considered by the Commission, the House Report speaks in terms of "the efforts . . . made to improve his [the inmate's] education, skills, or personal attributes. . . ." H.R. REP. NO. 94-184, supra, at 6 (emphasis added). See at 280, supra. In addition, under the House version of the bill, if parole was denied, the prisoner was to be advised of what he could do to improve his prospects for parole. H.R. REP. NO. 94-184, supra, at 7. See slip op. at 9, supra. Clearly, the House Bill contemplated rehabilitation as playing a significant role in the parole process.

 In the Senate Report, the focus of the legislators shifted. Although we do not think that rehabilitation and institutional progress were eliminated as factors by the Senate Subcommittee, the emphatic language of the House Report does not appear in the Senate Report. *fn27" Instead, the Senate Report all but endorsed the guidelines as developed by the Parole Board.

 Although the bill that came out of the House-Senate Conference effected a compromise between the respective positions of the two houses, in our view the Conference Report embraces the basic approach taken by the Senate. See slip op. at 12-13, supra. The guidelines were retained as the mainstay of the legislation. More importantly, the formulation of the guidelines was committed to the Commission. Congress expressly declined to write into the statute the precise method by which parole performance would be predicted because it was the intent of the Conferees "to encourage the newly created Parole Commission to continue to refine both the criteria which are used and the means for obtaining the information used therein." H.R. CONF. REP. NO. 94-838, supra, at 359. Moreover, while the PCRA incorporated the information which the House Bill required to be considered in each parole decision, the Conferees pointedly stated that " the weight assigned to individual factors (in parole decision-making) is solely within the province of the (commission's) broad discretion." Id. at 360 (emphasis added). Assessing the same issue that we now face, the court in WILDEN v. FIELDS, 510 F. Supp. 1295 (W.D. Wis. 1981), found this expression of legislative intent conclusive evidence of the validity of the guidelines. Id. at 1305. See also SHAHID v. CRAWFORD, 599 F.2d 666, 670 (5th Cir. 1979) (Congress intended Commission, not courts, to decide significance of particular information about prisoners). We agree. We note, in addition, the limiting construction placed by the Conferees on the provision adopted from the House Bill directing the hearing examiners to advise the prisoner of steps he could take to enhance his parole prospects. The Conferees recognized that in many situations the inmate could do little, if anything, to improve his parole status. H.R. CONF. REP. NO. 94-838, supra, at 362. See slip op. at 14 supra. We interpret this passage of the Conference Report as an implicit acknowledgment that positive institutional behavior may have little impact on the parole decision. *fn28" See also H.R. CONF. REP. NO. 94-838, supra, at 357-360 (analysis of § 4206 does not mention rehabilitation).

 2. Sentence Length

 Plaintiffs complain that the guidelines are invalid because they do not provide for consideration of sentence length in the parole decision-making process. Defendants counter, and we must agree, that the statute itself makes no explicit mention of the sentence actually imposed as a factor the Commission must consider. Furthermore, we find it difficult to construe the general criteria set forth in Section 4206 to encompass sentence length. The twin conclusions that release of a prisoner would not "depreciate the seriousness of his offense or promote disrespect for the law," and would not "jeopardize the public welfare" are reached by examining "the nature and circumstances of the offense" and "the history and characteristics of the prisoner." 18 U.S.C. § 4206. Thus, the Commission must review the character of the offense, not the sentence imposed for that offense. Arguably, "the history and characteristics of the prisoner," 18 U.S.C. § 4206(a), could include the sentence he is currently serving. When Congress expressly itemized the information that the Commission is required to consider, however, it failed to specify sentence length. Instead, Congress included in the list "recommendations regarding parole . . . by the sentencing judge." 18 U.S.C. § 4207(4).

 Nor can we glean from the legislative history an intention to make sentence length the starting point for the evaluation performed by the Commission. Sentence length was controlling under the House Bill, as we have seen, but that approach was rejected by the Conference Committee. Both the Senate Report and the Conference Report speak of the release decision as one "shared" by the three branches of government. See S. REP. NO. 94-369, supra, at 336; H.R. CONF. REP. NO. 94-838, supra, at 351. Significantly, both Reports recognize that " the final determination of precisely how much time an offender must serve is made by the parole authority," the executive branch. S. REP. NO. 94-369, supra, at 337; H.R. CONF. REP. NO. 94-838, supra, at 352. The Reports also describe the functions performed by the judicial and legislative branches in the scheme: the court sets a minimum and maximum term, within a range of discretion fixed by Congress. Id. at 337 & 352. Nowhere in either version is there an indication that the parole authority must do more than operate within the constraints provided by the judicial and legislative branches. See GARCIA v. NEAGLE, 660 F.2d 983, 991 (4th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1023, 71 L. Ed. 2d 309 (1982), (sentence serves to define outer limits of parole eligibility). To the contrary, the analysis of Section 4206 in the Conference Report states:


It is the intent of the Conferees that the Parole Commission make certain judgments pursuant to this section, and that the substance of those judgments is committed to the discretion of the Commission.

 H.R. CONF. REP. NO. 94-838, supra, at 358 (emphasis added). The Conference Report then continues,


Determinations of just punishment are part of the parole process, and these determinations cannot be easily made because they require an even-handed sense of justice . . . it is important for the parole process to achieve an aura of fairness by basing determinations of just punishment on comparable periods of incarceration for similar offenses committed under similar circumstances.

  Id. (emphasis added). A finding that the parole decision process must use the individual sentence length as its point of embarkation would frustrate this directive. *fn29" Moreover, the Conference Report instructs "the parole decision-makers" to "weigh the concepts of general and special deterrence, retribution and punishment, all of which are matters of judgment. . . ." in reaching their determination of just punishment. Id. No mention is made of the assessment of these concepts made by the court in arriving at a sentence. It is the Commission's own judgment that is called for, because sentencing and parole are separate, although related, processes.

  Our view of the interaction between sentencing and parole intended by Congress is one apparently shared by the Supreme Court. In UNITED STATES v. ADDONIZIO, 442 U.S. 178, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979), Justice Stevens commented,


"The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission. Whether wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges.

  Id. at 189. See also GARCIA v. NEAGLE, 660 F.2d 983, 990-91 (4th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1023, 71 L. Ed. 2d 309 (1982); PRIORE v. NELSON, 626 F.2d 211 (2d Cir. 1980); HAWKINS v. UNITED STATES PAROLE COMMISSION, 511 F. Supp. 460, 461 (E.D. Va. 1981), aff'd, 679 F.2d 881 (4th Cir. 1982); WILDEN v. FIELDS, 510 F. Supp. 1295 at 1300-01 (W.D. Wis. 1981).

  Thus, although we agree with other courts and commentators that the Commission might do well to give more deference to the sentence pronounced by the court, we do not think that deference is a requirement imposed by the PCRA. *fn30"

  3. Accountability

  Plaintiffs' next argument is the logical corollary of their attack on the ability of the Commission to disregard the sentence actually imposed. Plaintiffs' contend that the guidelines constitute a system of accountability unauthorized by the PCRA. They argue that the "offense severity rating" represents the Commission's own judgment of the seriousness of the offense and how much time the offender should serve in prison, independent of the sentence set by the court and the maximum penalty designated by Congress. Plaintiffs' position, that Congress did not sanction such independent judgments, is contradicted by both the terms of the statute itself and the language of the Conference Report.

  The statute clearly contemplates judgments regarding offense severity when it directs the Commission to determine "that release would not depreciate the seriousness of his offense or promote disrespect for the law . . ." based upon, inter alia, "consideration of the nature and circumstances of the offense . . ." 18 U.S.C. § 4206(a). A glance at the Conference Report, however, more vividly exposes the intention of the drafters of the PCRA to entrust the Commission with the task of assessing accountability in making its release decisions. Repeatedly, the Conference Report stresses this aspect of the Commission's job:


Nearly all men and women sent to prison as law breakers are eventually released, and the decision as to when they are released is shared by the three branches of government . . . The sentences of nearly all offenders include minimum and maximum terms, ordinarily set by the sentencing court within a range of discretion provided by statute. The final determination of precisely how much time an offender might serve is made by the parole authority. . . . In the first instance, parole has the practical effect of balancing differences in sentencing policies and practices between judges and courts in a system that is as wide and diverse as the Federal criminal justice system. In performing this function, the parole authority must have in mind some notion of the appropriate range of time for an offense which will satisfy the legitimate needs of society to hold the offender accountable for his own acts. . . Once sentence has been imposed, parole is the agency responsible for keeping in prison those who because of the need for accountability to society or for the protection of society must be retained in prison. . . .

  H.R. CONF. REP. NO. 94-838, supra, at 351-52 (emphasis added).


It is the intent of the Conferees that the Parole Commission, in making each parole determination, shall recognize and make a determination as to the relative severity of the prospective parolee's offense and that in so doing shall be cognizant of the public perception of and respect for the law. It is the view of the Conferees that the U.S. Parole Commission is joined in purpose by the Courts, the Congress and other Executive agencies in a continuing effort to instill respect for the law. The Parole Commission efforts in this regard are fundamental . . .

  Id. at 358 (emphasis added).

  In the face of these expressions of legislative intent, our conclusion is obvious. The PCRA authorizes the Commission to exercise its own independent judgment in measuring the severity of an offense and the need for accountability as a result thereof. *fn31"

  B. Constitutionality of the PCRA

  Plaintiffs' challenge to the constitutionality of the PCRA rests on two grounds, both of which rely heavily on dicta appearing in the Third Circuit's GERAGHTY opinion. First, Plaintiffs assert that a statute authorizing the Commission to focus consideration almost exclusively on deterrence and retribution, "the very factors that are available to the sentencing judge," without giving weight to the prior determination of the judicial branch, impermissibly interferes with the province of the judiciary. See, GERAGHTY, 579 F.2d at 261. Second, Plaintiffs argue that the PCRA violates the separation of powers doctrine by effectively delegating the legislative function of "redrafting" criminal penalties without adequate standards. Id. at 263. We will consider each of these contentions in turn.

  1. Impermissible Interference with the Judiciary

  The charge that the PCRA unconstitutionally authorizes the Commission to usurp the sentencing power of the judiciary has been effectively answered by the observations of the district court in JOOST v. UNITED STATES PAROLE COMMISSION, 535 F. Supp. 71 (D. Kan. 1982). We find the reasoning of District Judge Rogers on this issue so cogent that we reproduce a portion of it here:


At the outset, we note that there is no constitutional provision which explicitly provides or has been interpreted as providing that a judge must set or be able to predict the date of a defendant's actual release from prison whenever that might occur prior to the maximum term imposed. Congress has traditionally defined what behavior is criminal and prescribed the range of punishments to be imposed for such crimes. The sentencing court has traditionally been delegated the authority to select from the prescribed range the most appropriate sentence on consideration of the individual defendant and circumstances. To this day, the court designates in the judgment and commitment order the maximum time an individual may be required to serve for his crime. Furthermore, by selecting one of the statutory sentencing options setting the time of parole eligibility the court effectively designates the minimum term of imprisonment. The court then commits the defendant to the custody of the Attorney General for the time of the sentence. The sentence is executed by the Attorney General and his delegates within the executive branch of Government. As part of the responsibility to execute sentences, Congress has permitted executive authorities to ameliorate punishment by awarding statutory good time. Another traditional method of amelioration of punishment is executive pardon. Parole is technically nothing more nor less than another form of amelioration or mitigation of punishment authorized and defined by Congress and carried out by an executive agency. The PCRA, effective in March, 1976, has not substantially altered this overall scheme. We conclude that no function entrusted to the judiciary by the United States Constitution has been delegated to the United States Parole Commission.

  Id. at 73-74.

  Thus, the parole decision is no more within the province of the judiciary than is the assignment of an inmate to a particular institution for incarceration or to a security classification within the institution. Id. at 74. The sentencing judge may make recommendations about such matters, and under the PCRA the Commission is bound to consider his recommendation regarding parole, 18 U.S.C. § 4207, but the judge has no enforceable expectation that his wishes will be followed. Id.

  We endorse the JOOST opinion not only because we agree with the rationale propounded therein, but also because we believe that it comports with the position espoused by the Supreme Court in its most recent pronouncements. In UNITED STATES v. ADDONIZIO, 442 U.S. 178, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979), the Court compared the roles of the Commission and the courts:


The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission . . . . The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole date, but that guarantees only that the defendant will be considered at that time by the Parole Commission . . . the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term . . . the actual [release] decision is not his to make, either at the time of sentencing or later. . . .

  Id. at 189-90. See also UNITED STATES v. GRAYSON, 438 U.S. 41, 47, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1977). A footnote to this passage reinforces the separation drawn by the Court between sentencing and parole in even more striking terms. In footnote 15, Justice Stevens remarked that under 18 U.S.C. § 3651 a trial judge is precluded from usurping the parole function by splitting a lengthy sentence between a stated period of probation and imprisonment. ADDONIZIO, 442 U.S. at 190 n.15. Furthermore, the scheme outlined by the Court in ADDONIZIO is consistent with previous opinions in which the Supreme Court distinguished release decisions from parole eligibility determinations. The latter is part of punishment and the sentencing function; the former is made only after sentence has been entered and prosecution has terminated. BRADLEY v. UNITED STATES, 410 U.S. 605, 611 n.6, 35 L. Ed. 2d 528, 93 S. Ct. 1151 (1973). See also WARDEN v. MARRERO, 417 U.S. 653, 658-59, 41 L. Ed. 2d 383, 94 S. Ct. 2532 (1974); MORRISSEY v. BREWER, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).

  Based on the foregoing principles, it follows that if the authority of the judiciary is limited to selecting the outer boundaries of the time to be served, and the parole function cannot manipulate the maximum and minimum sentence in any way, the Commission does not encroach upon the judicial function, even though it may consider the same factors in reaching a parole decision. Other courts are in accord with our conclusion that under the PCRA the Commission cannot usurp power which the judiciary does not possess. See PRIORE v. NELSON, 626 F.2d 211 (2d Cir. 1980); MOORE v. NELSON, 611 F.2d 434, 439 (2d Cir. 1979), HAWKINS v. UNITED STATES PAROLE COMMISSION, 511 F. Supp. 460, 461-62 (E.D. Va. 1981), aff'd, 679 F.2d 881 (4th Cir. 1982) (relying on ADDONIZIO); WILDEN v. FIELDS, 510 F. Supp. 1295, 1303 (W.D. Wis. 1981) (citing MOORE).

  We believe also that our analysis is in harmony with the current interpretation of the separation of powers doctrine. In a recent discussion on the subject, the Supreme Court identified the proper inquiry as the extent to which the challenged statute prevents a branch of government from accomplishing its constitutionally assigned functions. NIXON v. ADMINISTRATOR OF GENERAL SERVICES, 433 U.S. 425, 443, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977). As we have previously stated, the powers delegated to the Commission can not interfere with the power of the court to designate the actual sentence, or the date of parole eligibility.

  2. Unconstitutional Delegation of Legislative Function

  Plaintiffs' argument that the PCRA permits the Commission to "redraft" federal criminal penalties is misplaced. It is clear from the foregoing analysis of the interaction between the statutory maximum, the sentence imposed, and the parole release date, that the guidelines do not perform any such function. The federal criminal statutes, on the one hand, fix the maximum penalties for the crimes they define. The guidelines, on the other hand, operate within the limits set by the statute, as well as within the confines of the sentence. Moreover, as Defendants point out, the guidelines specify time ranges for the typical length of imprisonment before parole, as opposed to maximum time periods set by statute, for various combinations of offense severity and offender characteristics. It is true that the severity ratings do not necessarily track the statutory sentence lengths, see GERAGHTY, 579 F.2d at 262 n. 115, but there is no constitutional or statutory requirement that they do so. See PRIORE v. NELSON, 626 F.2d 211 (2d Cir. 1980); MOORE v. NELSON, 611 F.2d 434, 439 (3d Cir. 1979); WILDEN v. FIELDS, 510 F. Supp. 1295, 1302-03 (W.D. Wis. 1981). See also Section IV.A.3. supra.

  In view of this conclusion, we need not reach the question of whether the standards contained in the PCRA are constitutionally adequate. Nevertheless, in our opinion the statutory criteria enunciated in 18 U.S.C. § 4206 are sufficiently specific to withstand an attack on the ground that the PCRA does not provide adequate standards to guide the Commission in the exercise of its discretion. We note that the Supreme Court has broadly interpreted the power to delegate, and has declared statutes unconstitutional on this basis on only two occasions. See SCHECHTER POULTRY CORP. v. UNITED STATES, 295 U.S. 495, 79 L. Ed. 1570, 55 S. Ct. 837 (1935); PANAMA REFINING CO. v. RYAN, 293 U.S. 388, 79 L. Ed. 446, 55 S. Ct. 241 (1935).


  To summarize, based on the foregoing findings of fact and our discussion thereof, we make the following conclusions of law:


First, the parole guidelines and regulations are a valid exercise of the Commission's authority under the PCRA; and


Second, the PCRA does not violate the Constitution of the United States.

  We will direct the Clerk of Court to enter judgment accordingly.


  [SEE ILLUSTRATION IN ORIGINAL] § 2.20 Title 28-Judicial Administration APPENDIX II [SEE ILLUSTRATION IN ORIGINAL] SALIENT FACTOR SCORE Name Register Number Item A: Prior conviction(s)/ square adjudications (adult or juve- nile). None =3 One =2 Two or Three =1 Four or More =0 Item B: Prior (commitments) square of more than 30 days (adult or juvenile). None =2 One or Two =1 Three or More =0 Item C: Age at Current Of- square fense/Prior Commitments. Age at commencement of the current offense: 26 years of age or *** =2 more. 20-25 years of age *** =1 19 years of age or less =0 Item D: Recent commitment square free period (three years). No prior commitment of =1 more than thirty days (adult or juvenile) or re- leased to the community from last such commit- ment at least three years prior to the commence- ment of the current of- fense. Otherwise = 0 Item E: Probation/parole/ square confinement/escape status violator this time. Neither on probation, =1 parole, confinement, or escape status at the time of the current offense, nor committed as a pro- bation, parole, confine- ment, or escape status violator this time. Otherwise =0 Item F: Heroin/piate de- square pendence. No history of heroin/ =1 opiate dependence. Otherwise =0 Total score square


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