Timothy J. ADAMS, Petitioner-Appellant, v. O.J. KELLER, Commissioner and the U.S. Parole Commission, Respondents-Appellees.
No. 81-5513.
United States Court of Appeals, Sixth Circuit.
June 22, 1983.
Rehearing En Banc Granted Sept. 23, 1983.
1195
Argued Nov. 9, 1982. * Opinion vacated, see 718 F.2d 155.
W. Hickman Ewing, Jr., U.S. Atty., W. James Ellison, Asst. U.S. Atty. (argued), Memphis, Tenn., for respondents-appellees.
Before KEITH and JONES, Circuit Judges, and PECK, Senior Circuit Judge.
KEITH, Circuit Judge.
On March 21, 1979, Appellant Timothy Joe Adams was arrested for detonating an explosive device in the Tesoro Coal Company Office Building in Hazard, Kentucky. An accountant who worked in the building was killed in the explosion. Adams’ brother, Charles, was arrested at the same time, but the evidence indicated that Appellant made the bomb and placed it in the building.
On June 11, 1979, Appellant entered into a plea bargaining agreement with the United States. He entered a plea of guilty to violations of
Appellant remained in custody nine months before his first parole hearing. At the first examination hearing, Appellant‘s offense severity was classified as “Greatest II because of the death of the coal company accountant.” Applying the Parol Commission‘s youth guidelines of
Youth guidelines in this case would indicate a range of 50 plus months to be served before release. Due to the fact
that a life was lost as a result of this subject‘s behavior, the panel is making a recommendation for a 10 year reconsideration hearing with a statutory interim hearing to be scheduled in December, 1981.
Eugene Slaughter, then Administrative Hearing Examiner, disagreed with the panel‘s recommendation. He stated, “I believe that 10 years is excessive since there was not willful intent to cause death. In view of age and lack of sophistication, I would refer to the National Commissioners and have him serve a total of 5 years.”
Parole Commissioner O.J. Keller agreed with Slaughter that the ten year sentence was too severe. But he also thought that Slaughter‘s recommendation was too lenient. Therefore, he sought to reconcile the two recommendations. Pursuant to
On January 21, 1981, Appellant filed a petition for a writ of habeas corpus and an action for damages against Commissioner Keller. The petition alleged that the Commission had extended his incarceration beyond that recommended in the Parole Commission‘s guidelines without adequate due process safeguards and that the Commission erred in applying the guidelines since Appellant was sentenced under the Youth Corrections Act. The complaint for damages maintained that Commissioner Keller was liable in damages for his participation in the decision.
On January 13, 1981, the district court dismissed that part of the action which sought damages against Commissioner Keller. On February 19, 1981, the case was referred to a United States Magistrate. The Magistrate recommended that the writ be granted. He agreed with Appellant that the Commission had misapplied its parole guidelines. He reasoned that by considering the seriousness of Appellant‘s offense in addition to applying a severity rating, the Commission had considered the severity of Appellant‘s offense twice. The Magistrate concluded that Appellant‘s parole date was the result of double punishment and recommended that the court “issue a writ ordering the discharge of petitioner from custody on parole, subject to special alcohol after care condition, after service of 50 months.”
The district court denied the writ. He held that the Commission‘s guidelines for making parole decisions were reasonable and did not constitute double punishment in this case. He noted that severity classification “Greatest II” did not contain an upper limit, only a lower limit on the months to be served. Therefore, Appellant had no expectation in any set number of months to be served. In addition, the court held that the Commission did not err when it applied the Commission‘s guidelines to Appellant even though he was sentenced under the Youth Corrections Act. Adams perfected this appeal.
I.
On appeal, Appellant challenges the district court‘s rejection of each of his initial claims. He maintains that the district court erred in: 1) dismissing his claim for damages; 2) allowing the Commission to
We affirm the district court‘s dismissal of the damages claim. There is no evidence that Commissioner Keller acted in bad faith or outside the scope of his authority as an officer of the law. To the contrary, Commissioner Keller‘s actions appear to be an honest attempt to reach a just result in setting a parole date for Appellant. Since there is no evidence of bad faith, recovery under
II.
Appellant does not argue that any use of the guidelines set forth at
Appellant was placed in the “Greatest II” category.4 Youth guidelines set a presumptive parole date of fifty-plus months for offenders placed in that category. Commission guidelines clearly state, “specific upper limits are not provided at this level due to the limited number of cases and the extreme variation possible within the category.”
We also reject Appellant‘s contention that the Parol Commission erred when it considered aggravating circumstances beyond those factors that are a part of the Commission‘s guidelines. The time ranges for each category are merely guidelines. “[M]itigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed.”
This court must affirm the decision of the Commission to deny parole unless there has been an abuse of discretion. See, e.g., Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982); Stroud, 668 F.2d at 846-47; Allen, 671 F.2d at 324. See generally, 71 Georgetown L.J. 339, 708 n. 2588.5 The Commission may consider the sophistication of the offense, Hayward v. United States Parole Commission, 659 F.2d 857 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982); “evidence that existed at the time of sentencing of more serious counts which were dismissed pursuant to a plea bargain,” Page v. United States Parole Commission, 651 F.2d 1083
The Commission did not abuse its discretion. It was authorized to consider each of the factors which was used to determine Appellant‘s parole date.6 The initial information concerning Appellant‘s past criminal record was amended when new information came to the Commission‘s attention. The new information was reviewed and found to be more suitable for evaluation at Appellant‘s statutory interim hearing. Thus Appellant‘s argument that the Commission considered impermissible factors in setting his parole date must fail.
III.
The final issue on appeal is whether the Parole Commission and Reorganization Act of 1976 (1976 Act) authorizes the Commission to treat youth offenders and adult offenders alike for purposes of making parole decisions. The Commission argues that it need only comply with the standards set forth at
Both parties agree that an interpretation of the 1976 Act is critical to this inquiry. Before passage of this legislation, youthful offenders could be sentenced under the provisions of the Youth Corrections Act codified at
It was clear from the YCA that “severity of the youthful offender‘s crime was conspicuously absent from the factors that could be assessed in determining whether to treat or release him.” Shepard v. Taylor, 556 F.2d 648 (2d Cir.1977). The important element of the program was that “once a person was committed for treatment under the Act, the execution of the sentence was to fit the person not the crime for which he was convicted.” Dorszynski v. United States, 418 U.S. 424, 434, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974) (emphasis added).
The 1976 Act shifted the focus for release of youth offenders. While before the 1976 Act there was no system of parole for those sentenced under the YCA, Congress amended the statute to provide that youth offenders be eligible for parole in accordance with the provisions of
We have no doubt that by making the criteria of subsection 4206(a) applicable to youth offenders, Congress was responding to the rising crime rates of youth offenders by making their confinement more in accord with general notions of punishment. Congress was concerned with notions of just punishment, retribution, and general and specific deterrence. However, neither its legislative history nor the 1976 Act itself supports the drastic result argued for by the Parole Commission.
It is a well-established rule of statutory interpretation that repeals by implication are disfavored. An early statement of this rule is found in Posadas v. National City Bank, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351 (1936) where the United States Supreme Court stated,
The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment.
Id. at 503, 56 S.Ct. at 352. See also St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981) (amendment eliminating subsection 3309(b)(3) of the Federal Unemployment Tax Act did not repeal subsection (b)(1) of the same Act where it remained unchanged and Congress evinced no intent to change its scope); Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) (addition of the word “minerals” to the amended Wildlife Refuge Revenue Sharing Act did not repeal by implication the Mineral Leasing Act of 1920 since there was no clear showing that this was the intent of Congress); TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (congressional appropriations for the completion of a dam did not implicitly repeal Section 7 of the Endangered Species Act as it applied to that dam); Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (Title VII of the Civil Rights Act did not implicitly repeal the Indian employment preference policy provided by the Indian Reorganization Act of 1934 where there was no “clear and manifest intent” to do so).
“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Hill, 437 U.S. at 190, 98 S.Ct. at 2299 (quoting Mancari, 417 U.S. at 550, 94 S.Ct. at 2482-2483). Furthermore, the YCA concerns the parole of a specific group of offenders. The 1976 Act, on the other hand, is an act of general application. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Mancari, 417 U.S. at 550, 94 S.Ct. at 2483.
The legislative history of the 1976 Act is, at best, ambiguous. The YCA is amended to reflect changes in the name and nature of the agency responsible for youth parole decisions (Youth Division changed to United States Parole Commission). The 1976 Act also provides for parallel parole procedures and parallel release criteria for all federal
But we observe that the 1976 Act retained all of the YCA. As the Tenth Circuit noted in Watts v. Hadden, 651 F.2d 1354, 1382 (10th Cir.1981):
It is our view that these rules which prohibit implied repeals of legislation apply with even greater strength or force where the implied repeal would have to have occurred not from the enactment of an independent statute, but from revisions of portions of statutory schemes. Clearly, Congress had before it the entire Youth Corrections Act when the amendments were passed in 1976. Nevertheless, provisions which require that response to treatment be considered in setting release dates were left unaltered. Also unchanged were provisions holding that the Youth Corrections Act inmates should be considered for unconditional release following one year of parole. Indeterminate sentences, segregation, classification, individualized treatment and the goal of rehabilitation all stand unchanged.
We disagree with the Commission‘s argument that Congress’ use of the term “parallel” in the legislative history mandates that precisely the same criteria are to be used for those sentenced under the YCA as are used for other offenders eligible for parole. Our review of the legislative history reveals no congressional manifestation of an intent to completely discard the rehabilitative underpinnings of the YCA. Moreover, we are mindful of the fact that grave constitutional concerns could arise if youth offenders, who are subject to potentially longer periods of confinement than their adult counterparts who commit the same offense, did not receive some special consideration in the terms of their confinement. Accord: United States v. Hudson, 667 F.2d 767, 770 (8th Cir.1982); Watts v. Hadden, 651 F.2d at 1365.9
Since the Parole Commission failed to consider Appellant‘s response to rehabilitation, we remand to the district court with instructions to allow the Commission to grant appellant a new parole hearing. If the new hearing has not taken place within a reasonable time, the writ of habeas corpus should be granted.
JOHN W. PECK, Senior Circuit Judge, dissenting.
I respectfully disagree with the majority opinion, being of the view that it is inconsistent with the strong mandate of Congress expressed in the 1976 amendment to the Federal Youth Corrections Act (YCA).
Section 7 of the Parole Commission and Reorganization Act of 1976, Pub.L. No. 94-233, 90 Stat. 232 altered the standards and criteria for determining release dates for youthful offenders. It specifically amended § 5017(a) of YCA, and mandated that the criteria of
Applying these new criteria, the Parole Commission analyzed the circumstances of Adams’ case, taking into account the seriousness of the crime committed and his past history, including the fact he had been sentenced under the YCA. As a result, it elected to apply its youth guidelines to Adams and set a presumptive release date. It left open the possibility of an earlier release date, by establishing an interim parole review in December, 1981 when another consideration under
The majority, however, would ignore the passage of the 1976 amendment and continue to require the Parole Commission to calculate release dates substantially on the offender‘s response to treatment. Certainly, while the Parole Commission may consider such a factor, and, in this case arguably did, it is no longer required to do so.1
we must attempt to construe this legislation, “if fairly possible, to avoid raising doubts of its constitutionality.” St. Martin Lutheran Evangelical Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981).