Hоmer Gene EDWARDS, Appellant, v. UNITED STATES of America, Appellee.
No. 77-1531.
United States Court of Appeals, Eighth Circuit.
Submitted March 7, 1978. Decided March 13, 1978.
574 F.2d 937
Ronald S. Reed, Jr., U. S. Atty. and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.
Homer Gene Edwards was convicted on May 18, 1973, for heroin distribution and sentenced to ten years’ imprisonment. The district judge, in sentencing Edwards, employed
I.
The indictment charged Edwards with two counts of knowingly and intentionally distributing heroin in violation of
Edwards received an initial, perfunctory hearing regarding eligibility for parole on November 13, 1973. At that hearing the Parole Board employed its new objective guidelines used in setting parole release dates.4 The Board determined to maintain Edwards in custody, scheduled the next hearing for November 1976, and stated:
The offense is in the very high category, the salient factor score is only 7, necessitating the service of between 36-45 months. * * * It is felt that he should get the maximum continuance of 3 years, giving him 41 months in all at the time of the next hearing, or in the mid-area of the guidelines * * *. Your release at this time would depreciate the seriousness of the offense committed and is thus incompatiblе with the welfare of society. [Pet. Br. at 2 (emphasis in original).]
Edwards’ petition alleges that the Board amended its prior order on March 4, 1975, and rescheduled the next parole hearing for September 1976. The hearing apparently was held in August 1976, however. At that
Your offense behavior has been rated as very high severity. You have a salient factor score of 7. You have been in custody a total of 39 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 36-45 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because of your extensive prior record which demonstrates that there is not a reasonable probability that you would live and remain at liberty without violating the law. 18 U.S.C. 4208 prohibits a continuance in your case of more than 24 months without review. Your next review has been scheduled in accordance with this statute. [Pet. Br. at 2.]
The net result, as observed by the appellant in his pro se brief, is that:
[W]hen appellant receives his Statutory Review Hearing in August, 1978, he will have been in custody some 63-64 months, which, less statutory good time, and the maximum good time earned, will actually leave appellant only several months short of serving two-third point of his ten (10) year sentence, that was imposed under provisions of Section 4208(a)(2) prior to the publication of parole guidelines that was published for the first time on November 19, 1973. [Pet. Br. at 6 (emрhasis in original).]
Frustrated in his attempts to obtain parole, Edwards brought the present action under
Accepting the facts as recited by the Petitioner in the body of his motion, I find that Mr. Edwards was accorded a preliminary hearing concerning his eligibility for parole within a short time after his arrival at his place of confinement; that his case was continued until November, 1976; that in March of 1975, the Board of Parole amended its prior order and moved up the Institution Review hearing to August or September of 1976; and that such hearing was actually held in August, 1976, following which the Board of Parole denied parole in this case and continued the matter for statutory review in August, 1978. Specific, articulated reasons were stated by the Board of Parole in denying parole in this case. The decision was affirmed by the Regional and National Boards.
As is patently clear from the facts above recited, the Petitioner was accorded a hearing on his application for parole at or before the one-third point of his sentence. Having been afforded that hearing, and the Board having stated cogent reasons for denying parole in his case, the Petitioner is now hard put to claim that he was not granted “meaningful consideration” for parole.
Accordingly, I hold that, since the Petitioner in this case has been timely accorded “meaningful consideration” of his application for parole, my expectations concerning the § 4208(a)(2) sentence imposed have not been thwarted.
Edwards then brought this pro se appeal, contending that our prior decision in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), entitled him to relief.
The decision as to when an offender should be released from prison is shared by all three branches of the federal government: (1) the legislative branch prescribes the range of sentencing possibilities; (2) the judicial branch determines whether to incarcerate and then sentences within the range of possibilities provided by Congress; and (3) the executive branch, through the Parole Board, determines how much of the sentence must actually be served in prison.
In exercising their authority, the federal trial courts may rely on three different statutory provisions, each with different implications for parole. The first is
The third provision,
A judge sentencing under section 4205(b)(2) does not sentence in a vacuum. Typically, he has reviewed carefully a large quantity of information about the offender and his offense contained in the presentence report and supporting documents. Based on this information the judge has made a determination that the offender, assuming proper behavior while in prison, would benefit from early release. For this reason, he has sentenced under section 4205(b)(2), because it allows the Parole Board to release the offender even before the offender has served one-third of his sentence.
Thus, although section 4205(b)(2) purports to give the Parole Board unfettered discretion in releasing a prisoner on parole, it actually embodies a reasonably concrete standard. The district judge, in sentencing under section 4205(b)(2), has an objective expectation: (1) that the prisoner will be given meaningful parole consideration at or before the one-third point of his sentence, and (2) that the prisoner‘s institutional conduct and rehabilitation will be major factors in the Parole Board‘s determination.7
This court has stated that sentencing judges do not have the authority “to supervise, control, or second-guess the Parole Board.” United States v. White, 540 F.2d 409, 411 (8th Cir. 1976); see Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967). On thе other hand, however, the Parole Board must exercise its discretion in a manner consistent with the federal Constitution, applicable statutes, its own published rules, and the mandate given it by the sentencing judge at the time of sentencing. Part of the sentencing judge‘s mandate is fulfillment of his objective expectations regarding meaningful consideration of parole applications of prisoners sentenced under section 4205(b)(2).
III.
We first discussed the problem of a sentencing judge‘s objective expectations being frustrated by the Parole Board in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975). In that case we held that the sentencing judge had continuing authority under
A.
The Parole Board possesses the authority to issue rules and guidelines applicable to parole determinations. See
This objective system or set of guidelines consists of a linear grid. The salient factor score, a point system for rating the offender‘s rehabilitative potential based on certain personal attributes, makes up the x coordinate.9 The y coordinate of the grid focusеs on the offense rather than the offender. Six classes of offenses are defined: low, low moderate, moderate, high, very high, and greatest. Thus, to find an offense characteristic one simply finds the offense on the chart where it is classified. The two coordinates are then put together linearly, and the “normal” range of time served before release can be ascertained according to the guideline chart.10
The goals of the guideline system are (1) to reduce the disparity in sentences meted out to similar offenders committing identical offenses, and (2) to contribute more predictability and fairness to Parole Board
From all indications, the guidelines are relied upon heavily in making parole determinations. For example, the Board‘s regulations, while reciting that the prescribed time ranges are “merely guidelines“, nevertheless seem to reserve parole below the guidelines to the exceptional case. The district court in Grasso II, supra, made a specific finding that the guidelines are applied in between 92% and 94% of all cases. [Footnote and citations omitted.]
Although predictability is one of the oft-asserted advantages of the guidelines, in practice the outcome has not been nearly so certain. In certain instances discussed below, the guidelines’ predictability is illusory. Thus, even if the sentencing judge refers to a copy of the guidelines, he cannot know the outcome before the Parole Board. For example, the sentencing judge (or his probation officer) ordinarily looks solely at the conviction in determining offense severity. The Parole Board is not so bound. In setting the appropriate offense severity and the salient factor score the Board makes a case-by-case determination. The Board can override the guidelines because of information it possesses indicating unusual circumstances.12 This information consists of the items commonly found in presentence reports. Thus, the Board may consider charges dismissed as part of a plea bargain,
Therefore, the Board‘s use of variables other than those indicated by the guidelines may produce an actual prison sentence far different from that contemplated by the judge imposing a sentence contаining any aspect of indeterminancy. For example, a prisoner with a good parole prognosis (salient factor score of 8-6 under the current guidelines, see note 10 supra) convicted of possession with intent to distribute soft drugs valued at less than $5,000 (high offense severity, see id.) and acquitted of possession of hard drugs with intent to distribute (very high offense severity, id.) may be required to serve not sixteen-twenty months as specified in the guidelines, but double that time. The Board accomplishes this result by treating the offender as though he were convicted of the greater offense where, in the Board‘s view, the circumstances justify assessing offense severity on the basis of crimes as charged, disregarding the acquittal.
B.
The petitioner in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), was sentenced under
We agreed. In sentencing under section 4208(a)(2), the trial judge possessed an objective expectation of meaningful parole consideration at the one-third point of the prisoner‘s sentence. This expectation was inconsistent with the Board‘s determination that the prisoner must serve thirty months before serious parole consideration. Accordingly, we held that the sentencing judge had continuing authority under section 2255 to modify the sentence.
In subsequent cases we clarified the meaning of Kortness. It is not to be extended beyond the “intended, and extremely limited, jurisdictional boundaries” of the
In sum, Kortness relief is available where: (1) the sentencing judge sentenced under section 4208(a)(2) and therefore set no minimum sentence that must be served before parole eligibility; (2) the sentence was imposed prior to or contemporaneous with the adoption of the Parole Board guidelines; (3) the prisoner has served at least a third of his sentence; (4) no meaningful parole consideration has been given to him. Under these circumstances, a critical error occurs in the sentencing process entitling the sentencing judge to modify the sentence.
IV.
Of the four requirements for Kortness relief, only one is in dispute in this case: whether or not meaningful consideration has been given to Edwards’ application for parole. The sentencing judge, who also ruled on the petitioner‘s section 2255 motion, decided that his “expectations” regarding “meaningful consideration” had been met.
However, his characterization of the Parole Board‘s action as meaningful consideration meeting his sentencing expectations needs to be analyzed in a different framework than subjective retrospection. As we indicated in part II of this opinion, judges sentencing under sectiоn 4208(a)(2) have reasonably objective expectations at the time of sentencing. These expectations are that a section 4208(a)(2) prisoner will be given meaningful parole consideration at or before the one-third point in his sentence and that the prisoner‘s conduct while institutionalized will be a substantial although not necessarily controlling factor in the Board‘s determination.15
It is difficult for us to see how these expectations could have been met in this
The above conclusion is evidenced by the Board‘s statement of reasons for denying parole. When the Board denied parole it stated simply:
After review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because of your extensive prior record which demonstrates that there is not a reasonable probability that you would live and remain at liberty without violating the law. [Pet. Br. at 2.]
This statement as a “meaningful consideration” of parole is somewhat mind-boggling. Edwards’ “extensive prior record” presumably was thoroughly considered by the sentencing judge. Nevertheless, the judge chose to sentence him under section 4208(a)(2), which provides for parole as soon as the Parole Board judges that adequate rehabilitation has occurred. In this case Edwards’ institutional conduct was apparently not even considered by the Parоle Board because no mention was made of it in its parole denial.16 Thus, on this record, we must hold that the August 1976 hearing did not constitute a meaningful hearing within the contemplation of a judge sentencing under section 4208(a)(2) and that petitioner is entitled to some relief under section 2255.
It is true that approval by sentencing judges of their originally-imposed sentences in section 2255 proceedings has been held to be a proper ground for denial of such motions. Gravink v. United States, 549 F.2d 1152, 1153 (8th Cir. 1977); United States v. Clinkenbeard, 542 F.2d 59, 60 (8th Cir. 1976). Nevertheless, we believe that a remand to the district court for further consideration is required. The petition, on its face, at a minimum suggests a prima facie case for relief of some kind. We believe that the district court should promptly schedule a hearing at which the Board may introduce evidence justifying its action, an action which effectively requires the petitioner to serve two-thirds of his sentence before meaningful parole consideration.
V.
As a final note, we caution that this is an extremely limited decision. Kortness was never intended to provide sentencing judges with authority “to supervise, control or second-guess the Parole Board.” United States v. White, 540 F.2d 409, 411 (8th Cir. 1976). On the other hand, the power to sentence remains in the sentencing judge and he may not abdicate that responsibility under a record that on its face indicates that reasonable sentencing expectations may have been frustrated.
We vacate the judgment of dismissal of Edwards’ petition for relief and remand this case to the district court for a hearing and further disposition.
HENLEY, Circuit Judge, concurring.
I have given careful consideration to the full and thoughtful opinion of Judge Bright, and I am in agreement with much of what is said in that opinion. I also agree that the order of the district court dismissing appellant‘s § 2255 petition without a hearing should be vacated and that the case should be remanded for further proceedings.
However, I reach my conclusion by a somewhat different route from that followed by Judge Bright, and I cannot overlook the severe restrictions that we have placed upon our decision in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), by our later holdings in such cases as Kills Crow v. United States, 555 F.2d 183 (8th Cir. 1977); Banks v. United States, 553 F.2d 37 (8th Cir. 1977); and United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976). And, of course, I do not overlook the position taken by Judge Stephenson in his dissenting opinion.
Generally speaking, the teaching of the post-Kortness cases that have been mentioned, as I read them, is that an inmate of a federal prison or correctional institution, sentenced originally under what used to be
In 1973 a federal convict who was not serving a life sentence or a sentence in excess of forty-five years was automatically eligible for parole consideration at the expiration of one-third of his sentence.
Where early parole is not granted in a case of this kind, the sentencing court may grant § 2255 relief under Kortness if (1) the sentence was imposed prior to or contemporaneously with the promulgation in November, 1973 of the guidelines that are discussed in considerable detail by Judge Bright, and (2) the Parole Board or Commission failed to consider the defendant‘s application for parole within the first one-third of his sentence.
However, it seems to me that regardless of the quality and outcome of the hearing, the intention and expectation of the sentencing judge when he imposed the § 4208(a)(2) sentence cannot be realized unless the hearing is held substantially prior to the expiration of the first one-third of the maximum sentence impоsed. Even if the paroling authority decides at the hearing that parole should be granted, the decision is essentially meaningless to the inmate within § 4208(a)(2) context if the hearing is not held until immediately before the expiration of the first one-third of the inmate‘s sentence.
In other words, in my opinion an eleventh hour hearing by the Board or Commission does not suffice to deprive a sentencing court of its § 2255 jurisdiction, and I think that the hearing that the Commission accorded the appellant Edwards came too late as far as the district court‘s jurisdiction was concerned.
The record reflects that while appellant was not sentenced formally until August 9, 1973, he was convicted by the jury on May 18, 1973; it seems to be agreed that shortly after that date, if not before, appellant was confined in jail, and that his sentence of ten years (120 months) began to run. Thus, one-third of appellant‘s sentence (40 months ignoring good time) would have expired about September, 1976.
I agree with Judge Bright that the initial hearing afforded appellant by the Board in November, 1973 before the guidelines were even published in the Federal Register did not amount to anything by way of meaningful consideration for early parole. At that hearing appellant‘s case was scheduled to be heard again in November, 1976 which would have been more than forty months after service of sentence commenced.
In March, 1975 appellant‘s hearing was rescheduled for September, 1976 and was actually held in August of that year. Judging from the decision of the Parole Commission, the hearing took place after service of thirty-nine months and thus was held within the fortieth month of appellant‘s term.
Administrative routine and procedure being what it is, it is completely unrealistic to suppose that even if the Commission had decided in August, 1976 to parole appellant, he would have been released from prison at any time substantially prior to the expiration of one-third of his ten year sentence. Hence, appellant‘s “early release” would have been meaningless from a practical standpoint.4
I do not think that the case can be disposed of properly by reference to the statement of the sentencing judge that since a hearing had been held within the forty month period, the sentencing intentions and expectations of the judge had been met. It occurs to me that the sentencing judge simply may not have considered any question of the timeliness of the Commission‘s hearing as far as giving appellant any meaningful relief was concerned.
In my view, the district court had § 2255 jurisdiction of the petition, and upon remand the sentencing judge should give further consideration to the question whether appellant should be resentenced.
I respectfully dissent.
The sentencing judge upon the record now before us after reviewing the same stated:
Accordingly, I hold that, since the Petitioner in this case has been timely accorded “meaningful consideration” of his application for parole, my expectations concerning the § 4208(a)(2) sentence imposed have not been thwarted.
Under the circumstances I see no reason for remanding this matter to the district court for further hearing. See Gravink v. United States, 549 F.2d 1152 (8th Cir. 1977).
APPENDIX “A”
Salient Factor Score
Case name ____________________ Register No. __________
Item A __________________________________________________ [ ]
No prior convictions (adult or juvenile) = 3.
1 prior conviction = 2.
2 or 3 prior convictions = 1.
4 or more prior convictions = 0.
Item B __________________________________________________ [ ]
No prior incarcerations (adult or juvenile) = 2
1 or 2 prior incarcerations = 1.
3 or more prior incarcerations = 0.
Item C __________________________________________________ [ ]
Age at first commitment (adult or juvenile):
26 or older = 2.
18 to 25 = 1.
17 or younger = 0.
Item D __________________________________________________ [ ]
Commitment offense did not involve auto theft or check(s) (forgery/larceny) = 1.
Commitment offense involved auto theft or check(s) = 0.
Item E __________________________________________________ [ ]
Never had parole revoked or been committed for a new offense while on parole and not a probation violator this time = 1.
Has had parole revoked оr been committed for a new offense while on parole, or is a probation violator this time = 0.
Item F __________________________________________________ [ ]
No history of heroin or opiate dependence = 1.
Otherwise = 0.
Item G __________________________________________________ [ ]
Verified employment (or full-time school attendance) for a total of at least 6 mo during the last 2 yr in the community = 1.
Otherwise = 0.
Total score ________________________________________________ [ ]
[42 Fed.Reg. 39815 (1977) (to be codified at 28 C.F.R. § 2.20).]
APPENDIX “B”
Guidelines for decisionmaking
[Customary total time to be served before release (including jail time)]
(in months)
| Offense characteristics—severity of offense behavior (examples) | Offender characteristics—parole prognosis (salient factor score) | |||
|---|---|---|---|---|
| Very good (11 to 9) | Good (8 to 6) | Fair (5 to 4) | Poor (3 to 0) | |
| Adult | ||||
| Low: | ||||
| Escape (open institution or program (e.g., CTC, work release)—absent less than 7 d). | 6-10 | 8-12 | 10-14 | 12-18 |
| Marihuana or soft drugs, simple possession (small quantity for own use). | ||||
| Property offenses (theft or simple possession of stolen property) less than $1,000. | ||||
| Low moderate: | 8-12 | 12-16 | 16-20 | 20-28 |
| Alcohol law violations | ||||
| Counterfeit currency (passing/possession less than $1,000). | ||||
| Immigration law violations | ||||
| Income tax evasion (less than $10,000) | ||||
| Property offenses (forgery/fraud/theft from mail/embezzlement/interstate transportation of stolen or forged securitiеs/receiving stolen property with intent to resell) less than $1,000. | ||||
| Selective Service Act violations | ||||
| Moderate: | 12-16 | 16-20 | 20-24 | 24-32 |
| Bribery of a public official (offering or accepting) | ||||
| Counterfeit currency (passing/possession $1,000 to $19,999). | ||||
| Drugs: | ||||
| Marihuana, possession with intent to distribute/sale (small scale (e. g., less than 50 lb)). | ||||
| “Soft drugs“, possession with intent to distribute/sale (less than $500). | ||||
| Escape (secure program or institution, or absent 7 d or more—no fear or threat used). | ||||
| Firearms Act, possession/purchase/sale (single weapon: not sawed-off shotgun or machine gun). | ||||
| Income tax evasion ($10,000 to $50,000) | ||||
| Mailing threatening communication(s) | ||||
| Misprison of felony | ||||
| Property offenses (theft/forgery/fraud/embezzlement/interstate transportation of stolen or forged securities/receiving stolen property) $1,000 to $19,999. | ||||
| Smuggling transporting of alien(s) | ||||
| Theft of motor vehicle (not multiple theft or for resale) | ||||
| High: | 16-20 | 20-26 | 26-34 | 34-44 |
| Counterfeit currency (passing/possession $20,000 to $100,000). | ||||
| Counterfeiting (manufacturing) | ||||
| Drugs: | ||||
| Marihuana, possession with intent to distribute/sale (medium scale (e. g., 50 to 1,999 lb)). | ||||
| “Soft drugs“, possession with intent to distribute/sale ($500 to $5,000). | ||||
| Explosives, possession/transportation | ||||
| Firearms Act, possession/purchase/sale (sawed-off shotgun(s), machine gun(s), or multiple weapons). | ||||
| Mann Act (no force—commercial purposes) | ||||
| Property offenses (theft/forgery/fraud/embezzlement/interstate transportation of stolen or forged securities/receiving stolen property) $20,000 to $100,000. | ||||
| Theft of motor vehicle for resale | ||||
| Very high: | 26-36 | 36-48 | 48-60 | 60-72 |
| Robbery (weapon or threat) | ||||
| Breaking and entering (bank or post office—entry or attempted entry to vault). | ||||
| Drugs: | ||||
| Marihunana, possession with intent to distribute/sale (large scale (e. g., 2,000 lb or more)). | ||||
| “Soft drugs“, possession with intent to distribute/sale (over $5,000). | ||||
| “Hard drugs“, possession with intent to distribute/sale (not exceeding $100,000). | ||||
| Extortion | ||||
| Mann Act (force) | ||||
| Property offenses (theft/forgery/fraud/embezzlement/interstate transportation of stolen or forged securities/receiving stolen property) over $100,000 but not exceeding $500,000. | ||||
| Sexual act (force). | ||||
| Greatest: | Greater than above—however, specific ranges are not given due to the limited number of cases and the extreme variation in severity possible within the category. | |||
| Aggravated felony (e. g., robbery, sexual act, aggravated assault)—weapon fired or personal injury. | ||||
| Aircraft hijacking | ||||
| Drugs: “Hard drugs“, possessiоn with intent to distribute/sale (in excess of $100,000). | ||||
| Espionage | ||||
| Explosives (detonation) | ||||
| Kidnaping | ||||
| Willful homicide | ||||
[42 Fed.Reg. 39313-14 (1977) (to be codified at 28 C.F.R. § 2.20).]
Notes
Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least three years in addition to such term of imprisonment * * *.Thus, even if Edwards served the full ten years of his sentence, he would be on parole for the next three years. Sitting by designation as a district judge in the Eastern District of Arkansas, I recently so held in a § 2255 proceeding commenced by a federal convict whom I had sentenced under § 4208(a) while serving regularly as a United States District Judge for the Eastern and Western Districts of Arkansas. United States v. Lacy, E.D.Ark., No. J-73-CR-6. A letter, treated as a notice of appeal, has been filed in the district court, and the case will probably reach this court in due course.
§ 2255. Federal custody; remedies on motion attacking sentence
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Sentencing judges using the provisions of § 4208(a)(2) have done so in the expectation that the Board will consider prison performance in deciding whether to grant early parole. Judge Weinfeld recently observed, in deciding to sentence pursuant to § 4208(a)(2), “The Parole Board determines, based on all significant factors, whether the defendant‘s response to the institutional program has been such that release on parole” is warranted. United States v. Zacharias, 365 F.Supp. 256, 257 (S.D.N.Y. 1973). In this very case, Judge Foley, in imposing sentence, explained to petitioner that “the sentence in this type of case is in your favor. You are sentenced under Title 18, Section 4208(a)(2), which means that the Board of Parole may determine your eligibility for parole. It depends upon your behavior at Danbury. . . .”
§ 4203. Powers and duties of the Commission
(a) The Commission shall meet at least quarterly, and by majority vote shall—
(1) promulgate rules and regulations establishing guidelines for the powers enumerated in subsection (b) of this section and such other rules and regulations as are necessary to carry out a national parole policy and the purposes of this chapter * * *.
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. The guidelines 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.On August 5, 1977, the Parole Board adopted a procedure in which federal prisoners are notified of their presumptive release dates under the guidelines at the outset of their terms of imprisonment. The goal of this laudable amendment in the regulations is to provide prisoners with more certainty about their release date. See 42 Fed.Reg. 39808.
The following instructions should serve as a guide in computing the salient factor score. Obviously, no guide can include all possible situations—good judgment always must be used. When in doubt about a classification, follow as closely as possible the examples listed below. Remember, however, that the salient factor score is designed as an actuarial parole prognosis aid. You may override this actuarial predictive aid, where warranted, provided you adequately explain your reasons. [Emphasis in original.]The Board has rejected suggestions that it stick more closely to its guidelines. Note the following excerpt from the Federal Register in which the Board discussed comments that had been received with respect to its proposed regulations:
Regarding the offense severity categories, one comment suggested that all ratings be based on offense of conviction only. A corollary suggestion was that all Federal statutory offense descriptions be listed on the severity scale. The Board presently considers the total circumstances of the offense committed (offense behavior) and exercises its best judgment as to the correct rating in each case. Rigidly codifying offenses by statutory section would preclude objective assessment of the actual offense behavior, and would place excessive reliance on convictions obtained more often by negotiation of pleas than by trial of the facts. Neither justice nor uniformity of treatment could be achieved with such a system, and the Board has, therefore, found the proposal unacceptable. [40 Fed.Reg. 41330 (1975).]
A major purpose of any indeterminate sentence provision is to give the Parole Board discretion to determine when a prisoner has reached that point in his rehabilitation process at which he should be released under supervision to begin his readjustment to life in the community.In practice, however, the Board apparently considers institutional performance as a relatively minor factor in parole decisionmaking. See Respondent‘s Brief at 17, Kortness v. United States, 514 F.2d 167 (8th Cir. 1975). The upshot is that average time served under a § 4208(a)(2) sentence is actually longer than the average time served under a regular sentence. United States v. Slutsky, 514 F.2d 1222, 1226 (2d Cir. 1975). Note, for example, the following colloquy that took place at the Joint Sentencing Institute of the Eighth and Tenth Circuits in August 1974, involving Maurice Sigler, then chairman of the Parole Board, аnd two judges:
JUDGE HENLEY [moderator]: Judge Denney?
JUDGE DENNEY: Judge Denney from Nebraska. I don‘t know whether this should be addressed to the panel or to the Bureau of Prisons. I spent quite a bit of time on bank robbery telling this young man that I was really giving him a break in sentencing him under 4208(a)(2), and he wrote me back after he had served about a year, said that the counsellor told him he might as well forget telling anybody that because they told me out here, I have to serve three years before I can even see anybody about it.
JUDGE HENLEY: He said, “Don‘t do me any more favors.”
JUDGE DENNEY: That‘s what he said, he said, “You really defrauded me.” [Tr. of Sentencing Institute proceedings at 357.]