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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).

 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

 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, ...

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