John H. Block v. Edwin Potter

233 Energy, F.Supp. 477 partment 425- Id. purposes. planning energy policy affirm, for the reasons essentially made no Plaintiffs, have also 437. We appellants, as Implementa- in this court. district court. showing stated such discretionary the EIA is tion of FRS will be of the district court judgment judicial re- scope action and agency affirmed. view, limited. Administrative any, if is See 10, 701-706 Act 5 U.S.C. §§ Procedure § 1207, Morton, 445 F.2d

(1976); Littell v. 1971). We find no basis to (4th Cir.

1211 agency’s fulfillment of with the

interfere obligations to collect data. statutory 6(c), Act Procedure § Administrative 555(c) (1976); United v. Mor- States

U.S.C. 632, 652, Co., ton Salt BLOCK, Appellant, H. John L.Ed. 401 major argument

Plaintiffs’ other authorized to dissemi the EIA is not et al. Edwin POTTER to other fed information collected nate the No. 80-1621. plaintiffs seek agencies. Specifically, eral of the information prevent distribution Appeals, United Court of States Antitrust Division and the FTC to the DOJ Third Circuit. for antitrust who use that information Rule Submitted Under Third Circuit Plaintiffs claim purposes. enforcement 12(6) July 1980. agencies to other the distribution Act, Trade prohibited by the Secrets Sept. Decided (1976). That statute bars U.S.C. § 30, 1980. Sept. As Amended which “not autho only those disclosures point to a rized lаw.” The defendants the statuto providing

number of sources Pri for such disclosure.

ry authorization provisions of the

marily, they rely on two (FEA) Administration Act: Energy

Federal Act, enacted in

section 52 of the FEA Energy office of

which directs the FEA’s EIA, Analysis, now the

Information Information Energy a “National

establish energy information containing

System” the needs adequately to meet

“appropriate Energy, the Con Department

of” the govern

gress, agencies and other policy deci- having “energy-related

ment

sionmaking responsibilities,” 15 U.S.C. 12(f) 1978),

790a(a)(3) (Supp. II and section Act, FEA original U.S.C. Comptroller

771(f) (1976), directs the Administrator, to dis

General or the [EIA] other Federal Govern

close information “to agencies, and officials departments,

ment request.” The district upon

for official use analyzed the relevant persuasively

court light of the conten

statutory provisions De Oil Co. v. parties.

tions of the Shell Croix, Christiansted, Holt, U. St.

Joel H. Islands, appellant. for S.Virgin Gen., Swan, Robert Atty. Arlington Ive Law, Gen., Dept, of Ellison, Atty. A. Asst. Christiansted, Croix, Virgin Is- U. S. St. lands, appellees. for ADAMS, SEITZ, Judge, Chief Before LORD, Judge.* District Judge, and Circuit THE OF COURT OPINION ADAMS, Judge. Circuit peti- from the denial of appeal In this corpus, we tion for a writ of habeas upon which the grounds to review the asked refused to Board of Parole Virgin Islands Spe- parole application. grant John Block’s whether we must determine cifically, rights Board violated by basing its decision equal protection deny- considerations. concluded the district court ing the writ valid criteria. applied Board had We reverse.

I. FACTS appellant Block spring In the a credit card of fraudulent use of convicted (Supp.1978). in violation of V.I.C. § an.eighteen month was sentenced to He term, before еxpire which is due to prison year. Under 5 the end of this calendar prisoner with a (Supp.1978) V.I.C. § eligible record becomes good institutional * by designation. Lord, III, Pennsylvania, sitting Judge Joseph District Honorable S. Chief for the Eastern the United States District ‍​‌‌​​‌​‌‌​‌‌​​​‌​​​‌​​‌‌​​‌‌​‌​‌​​​‌‌‌​‌‌‌‌​‌​​‌‍Court he liberty does not contend that has a of his Block serving after one-third entitlement, interest, recommended that must if release is sentence psychiatrist. by imposing procedural safe- prison preserved warden standards, eligibility Instead, complains that oth- satisfied these Block Having guards. December, applied procedures and stan- satisfactory erwise application, of Parole denied the applied arbitrary The Board were to him an dards however, that despite its determination impermissible manner. and that Block would danger there was no Thus, Court’s recent deci Supreme violate the laws if released. The again v. Inmates of Nebraska sion Greenholtz reason for the denial was that a proffered 1, 442 Complex, Penal & Correctional U.S. enjoyed like Block who had the so- person 2100, (1979), 60 L.Ed.2d 668 would 99 S.Ct. security, cial of financial a col- advantages appear to be no barrier to Block’s assertion education, pro- lege post-graduate and process rights were violated. that his due should be employment, fessional treated In Greenholtz the Court held that there is ' harshly “typical Virgin than the Is- release, liberty no interest in derived applicant.” hearing At lands the Constitution or from the either from court, the the district Chairman before discretionary parole of a mere existence elaborated on these the Board of Parole procedural process system, to which due reasons, distinguishing “typ- Block from the however, holding, attach. This protections grounds that he was ical” on the proposition not stand for the that once does Rican, black, unskilled. not Puerto or provide state decides to that which it is a Virgin in the petition offer, Block filed a habeas compelled to constitutionally district court under 28 U.S.C. 2255 Islands § there are no constitutional limitations what seq. (1967).1 1301 et (1976) and 5 V.I.C. making §§ on the basis for decisions soever sought custody Roe, He release from on the Maher 432 program. under the v. that the Board’s action constituted ground 464, 468, 97 2376, 2379, 53 U.S. S.Ct. L.Ed.2d an abuse of discretion in contravention of Sindermann, (1977); Perry 484 v. 408 U.S. equal protec- rights process 593, 2694, 2697, his to due 597, 92 33 L.Ed.2d 570 S.Ct. hearing, tion. the district court After a (1972). interpret as so To Greenholtz hold petition, holding prison- denied the that ing opinion would be to ascribe to that background may er’s social advantageous major upheaval intent to initiate a in due aggravate severity case, offense. Rea- however, process jurisprudence. The soning severity that offense is prin not contravene the time-honored does parole consideration because it bears on the ciple process “the touchstone of due that conduct, goal deterring future criminal against protection of the individual arbi the Board had court concluded government.” Wolff trary action of v. appropriate 539, 558, based its decision on criteria. McDonnеll, 2963, 418 94 S.Ct. U.S. court did not address Block’s 2976, (1974); district 41 L.Ed.2d 935 Dent v. West equal argument that he had been protection 114, 123, 231, 233, Virginia, 129 U.S. denied because of his race. This L.Ed. 623 appeal followed. Supreme emphasized As the Court in Per Sindermann, 593, 92 ry v. S.Ct. II. DUE PROCESS (1972), 33 L.Ed.2d 570 at least a “[f]or Appellant’s A. Nature of Due quarter-century Supreme] Court has [the Process Interest though made clear that even has process order to assess Block’s due ‘right’ government to a valuable benefit claim, important recognize it is though government may deny first to and even reasons, procedural process any this is not a due case. him the benefit for number of Arnold, Appellant’s petition federal See Zannino v. 531 F.2d 689 n. 5 habeas should claim, however, 1976). brought cog- have been under 2241 rather § Cir. challenging Virgin § since he is not his sentence. nizable under the Islands habeas statute. Parole, 525 the United States Board of F.2d upon which there are some reasons Henderson, government may rely.” (5th 1975); Id. at F.2d Clay Cir. Thus, rec- as Justice Powell (5th 1975); at 2697. v. United S.Ct. Childs Greenholtz, “nothing in ognized although Parole, (D.C. States provide requires a State the Constitution statute does not Cir.1974). Even if a state when a or ... State probation re- liberty rise to a interest give applies general parole system adopts Greenholtz, a state once insti- lease under justifiably eligibility, prisoners standards of system prisoners all have a tutes a fairly granted will be expect directly from the liberty flowing interest those stan- according to law whenever being pa- denied clause in not 19, 99 at met.” 442 dards are constitutionally arbitrary imper- role for J., concurring part (Powell, Consequently, alleging missible reasons. part). dissenting in of Parole Islands Board of a measure of dis presence large The arbitrarily basing its decision on acted system, as that parole in a such cretion grounds, we believe that impermissible Islands, does not alter the funda Virgin the process has stated a valid due claim against capri limitation process mental due resolve. that this Court must decisionmaking. legislative grant A cious Scope of Review and B. Standard not to a license does amount discretion of Discretiоn behavior. Kent v. United arbitrary 541, 1045, Virgin The statute confers 553, Islands States, 86 S.Ct. 1053, (1966); v. the Board of Pa- 84 cf. Winsett considerable latitude on 16 L.Ed.2d 1980) 996, (3d McGinnes, 617 F.2d 1006 Cir. role: nom. (in banc), petition for cert. filed sub to of Parole appears If it the Board from Winsett, 3001 v. 49 Anderson U.S.L.W. report by officers of the the 1, (No. 79-2014) (to 1980) be consist (July prison jail upon appli- or penitentiary, or prison process, ent with discretion of by prisoner for release on cation work release authorities under Delaware probability there is a that reasonable or “unbri program cannot “absolute” live and remain at such will dled”). indicates Although Greenholtz violating the laws if liberty without and expectation may state condition the opinion in the of the Board such release is parole, it a state deny completely, or even incompatible with the welfare of soci- arbitrary may totally statute not sanction discretion, the Board in its au- ety, may, impermissible decisions founded on applicant on thorize the release of such Clause, a Supremacy Under thе criteria.2 parole. fundamen state statute not vitiate the present- When (Supp.1978). 5 V.I.C. 4604 § process right tal due free from arbi to be scheme, the discretionary ed with such a governmental Meachum trary action. See judicial application for a role of review on 215, 2532, Fano, v. U.S. habeas insure the corpus writ of “is to J., (1976) (Stevens, 49 L.Ed.2d appropriate, Board followed criteria ration- Thus, not af dissenting). Greenholtz does al and consistent with the statute vitality of the cases hold fect the numerous capricious is not arbitrary its decision ing courts can the substance of review impermissible nor based considerations.

parole decisions, distinguished from the words, judicial In other re- the function procedures, to determine adequacy view is to determine whether the Board whether a board its author exercised Arnold, See, v. ity arbitrarily. v. Ar abused its discretion.” Zannino g., e. Zannino nold, (3d 1976). 1976); 531 F.2d 687 v. Calabro Cir. example, appear appropriate relationship 2. For it would not frivolous criteria with no rational suggest gives purpose holding the to parole that the such as color of Greenholtz attended, deny parole eyes, style boards a license on the or the one’s school one race, beliefs, religion, political clothing. basis of or on of one’s advantages, his answer despite all his Virgin whether to assess In order completely be a appeared its discre- Parole abused was-and Board of Islands answer-“greed.” to due There seemed to violate honest tion so as law, get necessary danger it is to define that he would into to be no starting As a discretion. Board mem- scope again, of their as far as the trouble by the always curtailed discretion is point, could see. bers Clearly, the of the Constitution. commands unanimous). (vote deny Voted process if it bases would violate due theory was based on the negative vote constitutionally a decision on many so more person who has had that a race, exer- religion, or the such as criteria who are advantages in life than those rights. Perry speеch of free cise brought before the Islands usually Sindermann, with should be dealt courts and convicted L.Ed.2d those harshly by the Board typical Virgin Islands who are itself also defines statute applicants. discretion. Section limits of the Board’s to consider whether 4604 directs the Board hearing before the district court At the recidivist and whether prisoner likely is a Board elaborat- of the Parole Chairman society. the welfare of release would serve describing typi- explanation, ed on this so as to applied criteria must be These applicant as black or Puerto Ri- cal underly- policies purpose effectuate under-educated, unskilled, can, grossly namely, reintegrat- parole system, ing the that Block He declared unsophisticated. deterring fu- ing society into offenders characteristics, and these none of shared Greenholtz, su- ture criminal ‍​‌‌​​‌​‌‌​‌‌​​​‌​​​‌​​‌‌​​‌‌​‌​‌​​​‌‌‌​‌‌‌‌​‌​​‌‍conduct. See the decision in attempted justify to then at 13 99 pra, deterrence: of rehabilitation and terms Brewer, 2106-2107; Morrissey v. penitentia- sending of someonе to 2593, 2598, 471, 477, 33 L.Ed.2d 484 . approaches, . . ry has several serious its (1972). When the Parole Board bases rehabilitation, which is certainly one of that bear no rational decision on factors deterrence; which is another another of deterrence, relationship to rehabilitation or period just simply which is for some transgresses legitimate it bounds of its will not be . . . function- time this McGinnes, supra, Winsett v. discretion. Cf. consequently it ing open society. in And (discretion prisoners’ work at 1007 under when we considered Mr. seemed to us must be exercised consist- release statute that while we could Block’s circumstances policy behind ently purpose with the file that we nothing particular in his see release). work testimony that before us or on the had turn then an evaluation of the We to before us that Mr. Block had was adduced Virgin Islands Parole Board decision of the recommit the very high propensity a to light of these standards. crime, inconsistent with the we felt Analysis of the Parole Board’s C. have society general of the to welfare Decision point, be- Mr. Block be released at that of crime he has committed type cause the explain The Parole Board minutes sophistica- a crime that does take some is ing application of Block’s state denial him in that tion and skill. And to treat that: to the Board to be same fashion seemed usual complete contrast to the society the welfare of inconsistent with board, presented candidate to the certainly would not have the because it and after college man had a education essentially in the com- deterrent effect training had for post graduate some generally. munity dentistry in New York. years practiced judg- we are suggesting While I am not of financial There were no indications want; community pres- why ing being swayed by he .... When asked should sure, responsibility I think we do have a make use of someone else’s credit card severity may be Offense what the effects of this think about will have on the welfare it affects the because particular parole consideration release him in community. And to v. United deterrence. See Garcia need for on an offense early a rather fashion Parole, (7th F.2d 100 States serious, we think was con- didn’t quite Warden, F.Supp. 1977); deVyver v. mandate was from with what our sistent phase of (M.D.Pa.1974). In the the statute. however, judg justice system, the criminal explana these An examination of severity properly ments of offense of Parole dis tions reveals that the Board offense, and only turn on the nature typical applicants on tinguished Block from the offender. Once not on the nature of white, indicating ground that he was character considers individual parole board undoubtedly that race was a factor severity, heighten offense istics inescapable decision. The conclusion terms justified can longer decision Rican, Puerto had Block been black or The deterrence of a deterrence rationale. typi have deemed him more Board would necessarily gives way, because socie theory sin and thus would not have applicant, cal activity deterring criminal ty’s interest Race him for harsher treatment. gled out activity depends on the harm that such criteria in the is an identity inflicts, particular rather than the most decisionmaking process, absent justice criminal perpetrator. Our justifica governmental compelling sort type or to deter a certain system seeks even cannot conceive of a rational tion. We conduct, of the charac regardless nature of prisoner’s relate a race argument propensi recidivist ac likelihood that he has or motivation of the individual teristics rationally be asserted that ties. Nor can it imper It is therefore irrational tor. race need to be potential criminals of one for a board to determine missible Thus, of another. deterred more than those white, inher well-educated frauds are race to the extent that it considered Block’s society require ently dangerous parole applica for denying as a reason black, illiterate stiffer deterrents tion, procеss. him of due deprived the Board frauds. however, the argues, The dissent scheme, which is the Under federal Board’s can be construed as based decision statute, Virgin Islands model for the the factors, primarily on social and economic according is rated severity of an offense the an only with race mentioned as illustrative to the back type, regard its without during hearing. the response question to a offender. Offend ground of the individual Although disagree interpreta- we with this into evalua enter er characteristics record, compelled we are as a tion of the possi they as bear on the only tions insofar propriety the of the result of it to address for rehabil and the need bility of recidivism explicitly by other factors relied on Pa Geraghty v. United States itation. See the Board. Commission, (3d 254 n.69 role interest in rehabil- Having found that the issue 1978), and remanded on Cir. vacated satisfied, at- fully itation was the Board 388, 100 certification, class tempted advantageous to relate Block’s so- (1980).3 These L.Ed.2d background policy cial of deterrence. bases, legitimate it would only are the accepted argument, The district court this seem, considering individual reasoning that Block’s individual character- severity making parole the of his offense. when decisions.4 augmented istics Indeed, guidelines operate, see Ger the Board deemed as which the federal 3. factors that the aghty, supra, at 254-59. aggravating regarded the federal are under improving or, mitigating, scheme as the like See, Arnold, g., 531 F.2d 687 4. e. Zannino danger by reducing lihood of release 1976), Zan- where the board denied way description of recidivism. For a history parole application because of his nino’s activities, orgánized of involvement crime greed, of Parole therefore abused its did admit his Islands Board conduct was some- opprobrious how more than an identical act in violation of discretion by economically committed an and educa- when it deemed offense tionally disadvantaged person. Although judged not because it credit more severe virtually all economic crimes are motivated inherently fraud to be an serious card by greed, the Board decided that this war- but because it felt that such transgression, Block, or, ranted harsher treatment well-to-do, by per- an act well-educated words, punished by other that he should be deserving of son is more deterrence than an being longer incarcerated typical by committed a less identical act fortunate Virgin Islands offender. individual. explanations When the advanced Weighing individual characteristics examined, Board of it appar- Parole propensities judg make individual ent that Board’s decision was rooted in ments about relative culpability is a sen punish, the desire to rather than the need to function, tencing within the province sole deter.5 The retribution rationale is evident judiciary. Geraghty v. United from the candid statement the minutes Commission, supra, States Parole at 259-60. meeting of the Board’s that Block should be Board, To the extent the Parole harshly dealt with more because of his ad- (cid:127) authority, executive motivated background.6 vantageous ap- The Board reaching retribution rationale in punitive pears judgment to have made a decision, be- judicial sphere, invaded the thus cause Block should have known better and upsetting the delicate sepa- balance of the Board, “professional” going and because of the manner in . .. that we are to have to Although guard against possibility which he committed just the offense. that we will challenged only adequacy because, Zannino simply well, sympathizing this is evidence, decision, and not the reasons for the professional going man and he is not to do it was clear that the board’s reasons were rele- again, caught because he has been possibility vant to the ty. of further criminal activi- process. embarrassed the whole may rationally A board conclude explanation highlights This the Board’s arbi- prisoner organized that a tions, with crime connec- trary departure from established stan- way who committed an offense in a dards, guarded against because it cоuld have organized activity, likely indecated criminal by taking this understandable human reaction enterprises to become reinvolved such if care to treat Block the same as less attractive parole'. released on further, however, By going candidates. consciously dealing harshly, with Block more Testimony hearing at the reveals that the Board’s action crossed the line between have been more concerned with punishment. deterrence and deterring acting itself from on the basis of sympathy deterring than with future criminal testimony by given 6. The the Board Chairman explained, conduct. As the Board Chairman hearing highlights punitive at the further the singled Block was out for harsh treatment be- underlying deny pa- motivation the decision to cause: example, following exchange role. For the oc- always It has been a concern of the Board curred: up appli- that some members who come background, So because of his because Q. parole are-they cation for are more attractive advantages you of the in he had life felt that They candidates. tively; come across more effec- harshly. he should be treated more Is that they appear to be more literate. I correct? think to some extent that various Board Well, appropriate A. we felt that it was not they sympathize members feel that could time, paroled that Mr. Block be at this that emphatize person, with this [sic] because apply granted parole, he for and be because they they see a lot in that that see in life, advantages had he has the in because it themselves. And I think that this is some- society is not consistent with the welfare of thing constantly guard that we are on. to somebody that when who has all of these youngster up insure that the who comes be- advantages and then decides nevertheless to at, 20, 21, say, age fore us let’s or even take it into his hands to commit a serious cases, younger in some who hasn’t has his felony jurisdiction crime which is a in this opportunity present in life and can’t his case just quickly very then effectively, released at the immediately as and he doesn’t sympathy minimum emphathy draw time. the or the of [sic] have received parole applicants, who singled out lands When powers.7 of

ration solely message they may because be treat- treatment that implicit for harsher an Block the Board was background, favorably his individual the hands law. of more ed him for the upon sentence passing in effect signal particular group sort of to a Any so, ap- the Board doing time.8 second accord criminal will them system the from the that are divorced standards plied on the basis or lenient treatment harsh abusing its purpose parole, policy and of the basis of solely on their deeds but right to due violating and discretion wealth, skills, learning is race, and their law. law. There- for the apt promote respect to justify to its attempt fore, Board’s was incom- Finally, the Parole Board’s decision the compatible with the welfare of society. decision as the with welfare patible analysis. reasoned fails to withstand soсiety parole system society in the interest of The EQUAL PROTECTION III. are treated applicants when only is served Parole Board Block also claims that the fairness, “fair treatment because with basic protection of equal his to the violated will enhance the chance in [decisions] insofar it considered race as the laws as by avoiding reactions to of rehabilitation militating against release. one factor Brewer, Morrissey v. arbitrariness.” we should not suggests The dissent L.Ed.2d remand be- this issue but should consider however, situation, by (1972). In this no district court made factual cause the admitting treating it was frankly theory The findings subject. on the harshly because he was simply Block espoused fact-finding and review appellate well-educated, se- white, financially and as for further justification the dissent cure, expect can to incul- hardly the situation, application has no delay justice system for the criminal respect cate court Although appellate ordi- Virgin Is- however. an “typical” Block or in either in (1979) (Supreme opiniоn Geraghty at- L.Ed.2d 805 Court in United 7. As this Court cautioned Commission, sentencing judge explicitly fact Parole to the States tests Project, 1978), parole); when Pa- likelihood of considered Decisionmaking the Sentenc- parole authority Release and consideration role focuses the deterrence, Process, incapacita- entirely ing 882 n.361 on factors of Yale L.J. retribution, undoubtedly judge into account it takes who tion and sentenced exclusively very factors are almost both Block’s considered sentencing judge. length assessing Com- available likelihood begins perform necessary punish mission then functions someone incarceration province are within light which the traditional have better of his who should known judiciary. prior At where the deter- least advantageous background to deter judicial given minations of the branch are By making use of credit cards. fraudulent therefore, questions weight, are serious imprison- length of own determination of the protections raised whether constitutional against appropriate retribution ment to exact judiciary provided independent are be- Block, the Board intruded on the of Parole ing undermined. sentencing Judge Aldisert As stated function. Addonizio, very ‘nature cir- where “the imposing judges, sen- function of It is the generated cumstances offense’ tences, evaluate characteristics offender imposition penalty retribution, deliberate of a they severity, [certain] bear on offense being used Parole Commission to judges now deny Sentencing also consider deterrence. parole practices anticipated setting which was a term of con- before 605, imposition original penalty[,] S.Rep.No. Cong., [tradition- finement. See 95th 1st Indeed, justice reject ap- (1977). judges this 1169 in this Cir- al standards criminal Sess. generally punishment parent cuit eligible sentence, if an offender for the same factor- assume that is double serving imposed by sentencing punishment for after one-third one court, good then an institu- offender with a the other the Parole Commission.” poses danger 155, tional record who grounds, little of recidi- 442 F.2d at other U.S. 573 rev. on actually vism will be released at time. (1979). Project, supra, at 892-93 178 Cl Yale They adjust their sentences accordance with judicial (when parole guess boards second eval- assumption. this See Addonizio v. United severity, they offense thwart or uation of nullify even States, 147, (3d 1978), 573 F.2d 153 rev. on process). sentencing 178, 2235, grounds, other 442 U.S. 99 S.Ct. 60

241 independent warranting one factor narily may not make factual harsher treatment preclude this does not us him than for the findings, “typical” from for black or equal protection- resolving appellant’s claim. Puerto Rican The dissent applicant. point, on particular again argues The issue whether a decision was for a this remand contending based on considerations of race is more it is not clear from the properly legal characterized as an ultimate what extent race record to factor reveals, conclusion to be drawn from a factual rec plainly the decision. The record however, ord, question a mixed or most as of lаw the Board did cite Block’s principle distinguishing and fact. It is an established race as a characteristic in we appellate explaining equal protec- review that are not bound its decision. The lower “conclusions which government court’s are but tion clause forbids bodies from race, legal making inferences from facts.” Shultz v. on the decisions basis of even Co., 259, Wheaton 267 if Glass other factors were also considered. The Cir.), denied, cert. U.S. S.Ct. use of racial criteria taints the entire action. (1970) (applying 26 L.Ed.2d 64 by relying We therefore find that on principle, this Court drew its own conclu Block’s race as one factor supporting the sion, differing from that of the district parole application, denial of his the Board court, wage on whether a differential was right equal violated Block’s to the protec- sex). on factors other than As based Jus tion of the laws. Absent a compelling gov- stated, tice Frankfurter “the conclusion - interest, ernmental the equal protection may appropriately bе drawn from the clause forbids different treatment of simi- always whole mass of evidence is not larly situated individuals on the basis of ascertainment of the kind of ‘fact’ that possible race. It is not to conceive of even precludes appellate considerations [an relationship a rational between the race of States, Baumgarten v. United court].” an purposes pa- offender and either the 665, 671, 1240, 1244, U.S. 88 L.Ed. role, offense, severity the need (1944). especially permissible It is for deterrence, prospects for or the for rehabili- appellate court to make its own determi tation. Nor is any history past there when, here, nation question mixed against discrimination “typical” black or one significance. constitutional Su parole applicants'that Puerto Rican would preme consistently Court has recognized justify treating a white that “in cases involving asserted violations strictly. University Cf. of California Re- rights of constitutional a reviewing court is Bakke, gents U.S. S.Ct. free to draw its own inferences from estab (1978). 57 L.Ed.2d 750 The Parole Board’s Ohio, lished facts.” Beck v. purported avoiding interest the appear- 223, 230, 100, 85 (1964) S.Ct. 13 L.Ed.2d 142 ance of favoritism advantaged, toward Harlan, (opinion J.); California, Ker v. “sympathetic” ‍​‌‌​​‌​‌‌​‌‌​​​‌​​​‌​​‌‌​​‌‌​‌​‌​​​‌‌‌​‌‌‌‌​‌​​‌‍applicants such as Block10 23, 33-34, 1623, 1629-1630, simply by could have been effectuated 10 L.Ed.2d 726 It is ap therefore treating Block the same as black and Puer- propriate for this Court to review the rec applicants. to Rican ord, which solely consists of undisputed documents, statements to determine IV. CONCLÚSION whether the Parole Board violated Block’s Islands Board of Parole de- to the equal protection of the laws.9 application nied John Block’s From the record before us it is evident the basis of arbitrary the Board considered Block’s race as bearing criteria no relationship pur- reaching 9. A portunity parole, further reason for this issue now and his claim that his rights that a remand in go this situation would frus- constitutional were violated would justice. proceed- trate the interests of Further unreviewed and unredressed. ings months, by would consume sevеral expired. time Block’s sentence will have As a supra. 10. See note 5 result, completely op- he would be denied an I. there- Board poses parole system. of a proc- fundamental due fore violated Block’s apply when process protections Due arbitrary govern- right ess to be free from a person a of deprives action government action, right as his well mental To obtain such liberty property or interest. judgment law. The equal protection of the protectible interest: a will accordingly of the district court an clearly must have than a reversed.11 must for it. He abstract need or desire SEITZ, Judge, dissenting. Chief expectation a have more than unilateral must, instead, legiti- have a of it. He majority join I for several cannot First, to it. I Block’s due mate claim of entitlement reasons. would dismiss prisoners do not process claims because 577, 564, Roth, v. Regents Board liberty interest have a sufficient 2709, (1972). 2701, 33 L.Ed.2d 92 S.Ct. has dis state created a merely because the then, is whether inquiry initial and the cretionary parole system, parole. liberty has interest Block a Statute, 5 Parole V.I.C. § Islands of the Nebraska In Greenholtz Inmates legitimate expecta a (1967), does not create Complex, 442 U.S. under v. Inmates Penal & tion of Greenholtz Correctional Penal & Correctional Com (1979), Nebraska 60 L.Ed.2d 2100, 60 L.Ed.2d plex, 442 U.S. 99 S.Ct. inher- held there Supreme Court Second, although agree (1979). fully I on to be released ent constitutional pa is an for race basis It mere existence parole. also held that the denial, ad role the district court did system establishes the of a state from question dress and it unclear this liber- not create a possibility does was whether race a mere de record However, recognized that it . ty interest. scriptive reference or a basis for the denial. could language of a statute itself Assuming significant that race was not a protected liberty interest. create factor, uphold I would the Board’s properly decision because the Board The Nebraska statute involved Green- hold society’s consider need to the criminal holtz Board of Parolе stated accountable for his conduct under section prisoner’s release on “shall” order a that an economic decision specified disqualifying four unless one of advantageous crime Block’s by someone of factors found exist.1 The Court was reprehensible was more legiti- this created a concluded that statute poor, economic crime uneducated per expectation and that state mate son rational therefore does not entitled to some measure of prisoners were equal protection Finally, violate clause. emphasized that process protection. It it is not because the role the courts lan- unique has structure and “this statute appeals independent findings to make any other state guage and thus whether fact, context, would present at least I entitlement provides protectible statute remand for a determination of race whether case-by-case basis.” must be decided on was a significant factor in Board’s deci deny parole application. sion to Id. at at 2106. (b) day depreciate opinion 11. release On the was filed the Court His would the seri- promote disrespect was advised that had been on crime released ousness of his

' parole. law; substantially (c) have a His release would provided part that: The statute relevant discipline; or effect on institutional adverse treatment, (d) Whenever the of Parole considers the His continued correctional care, eligi- training release of a offender who is committed medical or vocational or other parole, substantially facility ble release shall order in the will enhance his opinion unless capacity law-abiding release it is of the that his life re- to lead a when release should be deferred because: leased at a later date. (a)There 83-1, is a he will substantial risk that § Neb.Rev.Stat. parole; not conform the conditions

243 any regulations Parole release decisions in the Is- Absent formal that nar- discretion, row the exercise of the governed by lands are 5 V.I.C. 4604 Board’s § legitimate section 4604 does not create a provides That statute that if it parole claim of entitlement appears to the Board: liberty therefore does not have a interest in there is a probability reasonable process protections to which due at- parole] will live applicant and remain [a tach. This supported by conclusion is a liberty without violating the laws and number of decisions since Greenholtz that if in the opinion the Board such release have held that similar statutes that state is not incompatible with the welfare of leave parole decisions discretion of society, discretion, may, Board in its protec- authorities do not create authorize the release of such See, tible liberty g., interests. e. Boothe v. parole, (emphasis supplied). Hammock, (2d 1979); F.2d 661 Cir. Thus the statute leaves decisions Chestnut, Shirley (10th 603 F.2d 805 Cir. Board, and, the discretion of the unlike 1979) (per curiam). Accordingly, I would Greenholtz, the statute in section 4604 does hold that properly the district court denied require not grant parole process relief on Block’s due claim. unless specified present. conditions are Although opinion the majority appears to Nothing in the broad language of section agree that Block not liberty does have a “legitimate creates a claim of entitle Greenholtz, interest release under ment” to parole. Wagner Cf. v. Gilligan, it attempts distinguish Greenholtz (6th 1979) (per curiam) (no F.2d 866 Cir. limiting procedural process claims, it to due liberty interest created Ohio statute un purports prisoners and then “all to find that der authority may grant pa have liberty flowing interest directly if, discretion, role in its it determines that from process the due clause in being parole would further the justice interests of denied arbitrary or constitution- and be consistent with the welfare se ally impermissible (emphasis reasons.” curity society). added). majority’s infirmities process analysis due are several. Nor are there present other factors First, majority inap- finds Greenholtz this ease that сreate liberty interest. In plicable request pro- because Block does not our recent decision McGinnes, in Winsett v. safeguards. holding cedural that this is 1980) (en F.2d 996 banc), peti case, not a procedural process due the ma- tion for cert. filed sub nom. Anderson v. jority presumably analyzes it under sub- Winsett, (July 1980) U.S.L.W. 3001 process. distinction, stantive due This how- (No. 79-2014), the work release statute left ever, analysis. does not advance the much prison discretion to officials and did process due prohibits government clause itself create a liberty interest. We arbitrarily from depriving of a nevertheless protectible found a interest in protected interest, by requiring either part because regulations work release pro certain procedural protections provided mulgated by Department the Delaware interest, protect or, by providing Corrections limited Department’s dis government review of the sig- action that cretion under the statute. nificantly impinges on that interest to en- are, however, There no such limiting reg- surе that it not arbitrary. Characterizing Indeed, ulations’ in this case. we are ad- Block’s claim that his denial violated vised that adopted Board has regula- process due clause as substantive does tions whatsoever. We have only a statute not vitiate the identify liberty need to that leaves decisions to the discretion implicate interest sufficient to Board, which must make a difficult protection. City Cf. Moore v. of East judgment as to prisoner’s whether a release Cleveland, will be compatible with the welfare of soci- (1977) (finding L.Ed.2d 531 that freedom of ety. personal marriage choice matters of though govern- benefit and even the by the ment liberty protected life a due

family is any in process clause). holding may deny Therefore the him the benefit ment prisoners reasons, do not have a Greenholtz that of there are some reasons number parole merely in because the liberty interest rely.” upon government which the parole system applies a to has created state Perry in lack of a held that Thе Court process due this case whether the claimed right defeat a teacher’s does not tenure procedural is or substantive. violation his contract claim that the nonrenewal the speech to under right his free Second, by the violated the conclusion reached amendment, teacher’s prisoners liberty a that the majority that all have and first by arbitrarily the entitled policy interest not to be treated a facto tenure claim of de require- government in effect avoids the prove legiti- to the opportunity him to identify must the ment court first a property to interest macy of his claim a government which the has interest toward Therefore, Perry nor neither job tenure. arbitrarily when it reviews due acted by of the other cases relied on the any process Because Greenholtz held claim. proposition that due majority support the prisoners liberty have no interest process protection attaches whenever there the statute itself cre- unless by government arbitrary action the with- legitimate expectation ates a pro- determining first there out no Virgin Islands statute creates such the interest. Because property or liberty tected majority in effect is con- expectation, the liberty re- had no interest arbitrary by cluding any action the claims lease, process I his due would dismiss government liberty creates the interest it- Board’s decision un- analyze the Parole “life, strips the words self. This conclusion equal clause. protection der the liberty property” or in the fifth amendment meaning also any independent com- Supreme the anal- II. pletely undercuts Court's ysis in Greenholtz. it Block’s Board admits that denied majority’s the agree

I with assertion that it concluded that parole application because a discretionary parole system which creates advantageous back- person with Block’s no legitimate expectation does not harshly more ground should be treated give deny the state the to unfettered parole applicant. typical Virgin Islands the impermissiblе arbitrary differential treat- Block asserts this However, grounds. constitutionality the equal protection clause of violated the ment grounds the on which the re- board the fourteenth amendment. analyzed provi- lies should be under other meeting at The minutes of the Board sions of the Constitution and not application considered was example, prisoners For are clause. state: protected arbitrary pa- from denial pa- contrast to the usual complete role based on “frivolous criteria with no Board, presented candidate role relationship purpose pa- rationale college man had a education and role,” or classifica- otherwise had post-graduate training after race, equal protection tions such as years [practiced dentistry] New some from protected clause. Prisoners are of fi- York. There were indications political religious denial based on their . he why .: When asked nancial want: This beliefs the first amendment. is the use of someonе else’s credit should make protection constitutional to which the Su- his despite advantages, all an- his card preme referring in the Court cases be a com- appeared was-and swer majority. majority relied on As the answer-“greed.” There pletely honest notes, Sindermann, Perry danger get that he would to be no seemed 33 L.Ed.2d 570 far again, as into trouble (1973), though stated that “even Court see. govern- members could person ‘right’ has no to a valuable deny (vote unanimous). Voted A. negative vote was based on the theo- Assuming that Block’s ‍​‌‌​​‌​‌‌​‌‌​​​‌​​​‌​​‌‌​​‌‌​‌​‌​​​‌‌‌​‌‌‌‌​‌​​‌‍race or ethnic ry many that a who has had so significant was not a factor in advantages in life than those who decision, the task in deciding Board’s brought before the usually equal protection claim is to determine

Islands courts and convicted should be whether the Board had a rational basis for by dealt with the Board more harshly denying parole application his because of who are typical Virgin those the his advantageous social and economic back- parolе applicants. Islands ground. Dandridge Williams, 471, 485-86, 1153, 1161-1162, At the district hearing court’s on Block’s agree L.Ed.2d 491 I with the Watts, petition, habeas corpus Frederick G. majority’s analysis general deterrence. I the Virgin Chairman of the Islands Board agree majority’s also with the conclusion Parole, explained the Board’s decision. that the Board’s decision “was rooted in the Initially, counsel Block asked Watts to punish” desire to or retribution. I part typical describe the Virgin Islands company however, with majority, the when applicant against whom Block had been improper concludes that retribution is an responded contrasted. He that: criterion for the Parole Board to consider Rican; they typically are black or Puerto province because it is “within the sole they typically are grossly under-educat- the judiciary.” commenting Without on ' They ed. are also typically unskilled in the desirability of the use of retribution as extent, terms of work any large skills to stage, a criterion at the I release relatively unsophisticated at least рeople. think that it within authority the Virgin Islands Parole Board to consider this Watts admitted that Block is not black or rationale. Rican, undereducated, Puerto not and not unskilled unsophisticated. justi- He then Section 4604 directs the Board to consider fied the denial of parole application eligible prisoner both whether an is likely to ground

on the that: violate the law if released and whether his

it is not consistent with the welfare of release “is not incompatible the with wel- society that when somebody who has all fare society.” Thus the Board must con- of these advantages and then only prisoner’s sider not the rehabilitation decide[s] nevertheless to take it into his hands to but also the effect of on his release the commit a serious felony crime which is a community as a whole. This latter factor jurisdiction just then be quickly concepts general makes deterrence and very released at the time. appropriate components minimum retribution Christian, parole decision. See Rankin v. Although background Block’s ethnic was V.I. F.Supp. (D.V.I.1974) (pa- to in by alluded the district court Watts as role denial under section 4604 because of distinguishing typical factor him from the general need for drug deterrence of of- Virgin parole applicant, Islands the district equal protection). fenses does not violate court did not address whether race as such Although the federal statute does was relied on in rendering its case, disposition control of this Moreover, decision. it is unclear from this notes, the majority it “is the model for the record whether Block’s race or ethnic back- Virgin legislative Islands statute.” The his- ground general as such rather than his so- tory of this Act specifically enumerates ret- cial and economic was relied on ribution as criterion for a Parole deny parole. the Board to Because deciding Board to consider when on a classifications greater based race receive application. example, For the Senate Re- protection equal protection under the clause port provides: classifications, than econоmic I will first equal protection sentencing address claim as Parole is an extension of the though race not a factor. .... The final determination of typical than the violation and statute how much time offender

precisely punish- may merit more severe serve authori- therefore must is made generally ment. While such considerations parole agency weigh must sever- ty. decision, the sentenc- to the decision of complex making relevant al factors language of necessarily ing in view of the broad comple- judge, all of which are 4604,1 permissi- instance, think that it is also mentary. In first section these retribu- ble for the Board consider practical balancing has the effect dif- stage. at the principles tion sentencing policies prac- ferences in judges tices between courts.... Block committed The Board found that parole authority must have in mind [T]he offense, use of a an economic fraudulent range of appropriate some notion of the card, greed. solely credit because of satisfy for an which will time offense typical case and less fortunate society to hold the legitimate needs of above, described Islands for his acts. offender accountable own this economic offense reason- commission of under- Sess., Cong., ably might sympathetic 2d 15- evoke some S.Rep.No.94-369, 94th However, Admin.News, standing. U.S.Cong. pp. & and economic displays none of social Report also 337. House Conference such might mitigate disadvantages that provides: reprehensi- his conduct less offense or make just punishment are Determinations of ble. part parole process these de- easily made be- terminations cannot circumstances, I think that it Under these they require an even-handed sense cause permissible the Board to consider body competent of justice. of There is no particu- committing this Block’s conduct upon empirical knowledge than similar lar offense to be more serious rely, yet impor- it is decision-makers can typical Virgin conduct Islands parole process tant for the achieve an the com- consequently, basing determinations aura of fairness greater had a to hold Block munity need just punishment comparable periods of on Albano this crime. v. accountable for See offenses com- Anderson, F.Supp. (M.D.Pa.1979). of incarceration for similar The Therefore, mitted under similar circumstances. a ration- this concern constituted weigh decision-makers must on Block’s al the Board’s reliance basis for concepts special back- general and deter- social and economic advantageous rence, application, all of punishment, denying retribution and ground in judgment.... which are matters of basis does not this denial equal protection clause. violate the Cong., 94th 2d H.Con.Rep.No.94-838, Sess. 25-26, Admin.News, p. U.S.Cong. & B. Taylor, Shepard also See If, my assumption contrary 1977) (under federal section, the base its deci- above Board did statute, just punishment determinations of white, fact that Block was this sion on the process, Parole part under the greаter scrutiny basis deserves concepts weigh general Commission must the stan- equal clause. Whether protection retribution). deterrence and in terms of scrutiny dard is couched on a criminal of- imposed Punishment standard, or some see scrutiny strict lesser purposes con- fender for of retribution to Bakke, Regents v. University of California reaf- demn his conduct and to vindicate or L.Ed.2d 750 firm norms and values. community (1978), not think that the Board’s inter- I do Paulsen, M. Criminal generally S. Kadish & deny it to permit est retribution would Law & Its Processes 6-21 Under race. because rationale, violates certain conduct that majority that agree I with the greater a criminal constitute a therefore statute for the protected by race criterion to the values is an affront societal consider, I majority, Board to but unlike the think that it is the

do function independent findings

this court make present in the appeal,

fact on at least con- Because the district court did not

text.

address, unclear, to what and the record

extent, any, if Block’s race or ethnic back-

ground may have been a factor in the decision,

Board’s I would remand this case hearing for a forthwith the district court

and determination as to whether race was a

significant factor. Such an order would majority’s

answer the concern that because expire,

Block’s term will soon his constitu- rights

tional will go any unredressed.

event, contrary suggestion in the

majority opinion, I do not believe expedition justifies

need for deviation from fact-finding procedures.

established BOYD,

Rodney Appellant, T. MINTZ, Superintendent

Ira New

Jersey Diagnostic Adult & Treatment

Center, Jersey. and The State of New

No. 79-2663. Appeals,

United States Court of

Third Circuit.

Argued May 1980. Sept.

Decided Ness,

Stanley Defender, Van C. Public Singer (argued), Deputy M. Asst. Stanford ‍​‌‌​​‌​‌‌​‌‌​​​‌​​​‌​​‌‌​​‌‌​‌​‌​​​‌‌‌​‌‌‌‌​‌​​‌‍Defender, Abrams, Lerner, Public Kisseloff Kissin, J., Orange, appellant. & East N. J., Degnan, Atty. John of N. J. Gen. Trenton, J., (ar- N. Simon Louis Rosenbach Gen., gued), Deputy Atty. Division Crim. Justice, Section, Princeton, J., Appellate N. appellees. ADAMS, Before VAN DUSEN HIG- and. GINBOTHAM, Judges. Circuit

Case Details

Case Name: John H. Block v. Edwin Potter

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 30, 1980

Citation: 631 F.2d 233

Docket Number: 80-1621

Court Abbreviation: 3rd Cir.