Willis E. Campbell v. United States Parole Commission and Joseph S. Petrovsky. Appeal of United States Parole Commission
704 F.2d 106
3rd Cir.
1983
Check Treatment

*2 the bank customers. The charge ALDISERT, Before SLOVITER and RO was dismissed on motion of the prosecution. SENN, Judges. Circuit Campbell was on charge convicted of abduction, for which he a year received OF OPINION THE COURT sentence, charge and on the of robbery of a SLOVITER, Judge. Circuit customer, bank for which he received a 25 year sentence, both of which were to run ISSUE concurrently with each other and with the May the United States Parole Commis- federal sentence. co-defendants consider, sion (Commission) as an aggravat- in convicted the state court on all ing factor justifying a decision above the charges, murder, three including and were parole guidelines, a murder committed by sentenced to imprisonment. life the prisoner’s two confederates pre- which August 1978, after Campbell had ceded a bank robbery in which all three sentence, served 69 of months his federal participated? The district court disap- received parole hearing his initial proved the parole of decision made on that penitentiary in Lewisburg, Pennsylvania basis, directed Commission to hold a which he then was A incarcerated. divided parole hearing new at which the murder panel determined not to set a date at could not be as a used reason for continuing time, but to continue him a four prisoner’s custody. The ap- Commission year reconsideration hearing August peals we reverse.

1982, the most severe decision available to at that time. Commission The Notice FACTS1 of provided Campbell explained Action In October following Willis Camp- the Commission’s decision as follows: bell’s release on parole August Your offense behavior has been rated as from a year six sentence for burglary and high a very severity. You have salient grand larceny imposed District of score You cus- Court, Superior Columbia he and two con- tody total 69 months. Guidelines Virginia Beach, Virgin- federates arrived in established purpose robbing ia for the adult bank. Lack- cases which consider the above factors ing transportation, taxicab, they hailed a range indicate 60-72 months to be abducted and drove to a secluded good area. served before release for cases with cab, While remained in the performance program his confederates removed the driver institutional taxi, area, adjustment. from the took him into a After review of all relevant wooded and shot and presented, killed him. asserts factors information deci- that he had no knowledge that a murder sion above at this consider-. 1. The “facts” are taken from the events set matters before the Commission and district us, consisting forth in the record before court. involving a being robbery it a bank mur- in- appears warranted because ation score of 2. You have salient factor community supervision der. carceration and custody a total involvement You have been you did not deter from established your instant offense behavior months. Guidelines serious As for adult cases con- required which involved a murder. *3 a range indicate [sic], you have also been scheduled sider the above factors alw during 60-72 months to be served before re- hearing interim statutory for a good institutional lease for cases with August, 1980. adjustment. and performance program was statutory hearing interim Campbell’s and review of all relevant factors After ex- August hearing The two held in presented, decision above information disagreed. Examiner VanWalra- aminers because guidelines appears warranted Campbell paroled ven that recommended behavior involved fol- your offense months; serving Examiner Alex after cab driv- lowing aggravating factors: parole that he be denied recommended shot was into the woods and er taken term. expiration until the of his continued death. Camp- that Examiner VanWalraven noted added). was af- (emphasis This decision report not mention presentence bell’s did appeal. on administrative firmed murder, Campbell still driver’s that cab period faced a substantial of time on rem- exhausting his administrative After sentence, and Virginia parole that after edies, corpus pe- Campbell filed this habeas above the months would be months 2241 in the United tition under 28 U.S.C. § guidelines “appears appropri- to be the Middle District District Court for States accountability ate of time for amount alia, Pennsylvania inter that the alleging, his instant offense.” Examiner role abused its discretion deter- hand, Alex, it “im- other stated was mining he was involved in murder that that file not contain in- material does support the facts did not such deter- when effect driver formation that cab agreed, The district court hold- mination. killed, subject’s offense was shot and record before the Parole Com- ing: “The this as he himself admits that inasmuch factual basis for mission was devoid of that “the offense behav- place”; took total examiner Alex’s conclusion that clearly ior murder” involved cold blooded involved a cold blood- total offense behavior was on the admittedly and that murder, decision or for the Commission’s ed scene; might not him require that aggra- an driver’s death was that cab time; that to serve much additional decision vating justifying factor Campbell’s salient factor score because The court guidelines.” years six above only actually he amounts 2 and had “what above the decision commented “[s]ome situation”, severity offense a Greatest II in this may have warranted expiration of be continued until should period between in view of “the short case” relatively his term “even view of of Colum- in the District petitioner’s parole hearing two good record.” Since the of the offense for and the commission bia divided, examiners incarcerated”, the Administrative but conclud- he is now vote, Hearing deciding Examiner cast the already time served “petitioner has ed agreeing with Examiner Alex. See range.” beyond guideline considerably 2.23(c) (1982). C.F.R. § ordered the Commis- court district Action informed The Notice of parole hearing Camp- a new sion hold of the Commission’s decision continue the fact of it could “not use bell at which expiration of his term. prison him in until as a reason for cab driver’s the decision as follows: explained custody.” The Com- continuing petitioner’s com- interim but appealed, been rated as mission offense behavior has Your held order and the court’s plied it with high severity previ- because very 8,1982, the Commis- July hearing. new On category, despite ously been rated this sion notified by Notice of Action DISCUSSION of its decision to parole him effective Au- 1. Was there 17,1982 any factual basis for gust conclud- Virgin- his detainer held by or, ia on the charges, state if the ing detainer offense behavior includ- exercised, were not him directly to ed a murder? the community effective October We view the district court’s requir- order special drug aftercare and special su- ing the hold a new pervision during the first six months. The hearing as two presenting issues: whether new Notice of Action did not refer to the the record before the Commission was de- murder of the gave but void of any factual basis conclusion warranting a decision above the guidelines the fact that Campbell’s total offense behavior in- “[t]he new crime robbery], much more serious [the volved a cold blooded murder and whether than the crime from which [Campbell was] the Commission could consider that the cab *4 paroled, occurred only two months after driver’s an death was aggravating factor release” from the District of Columbia sen- justifying parole a decision Campbell six tence. explained The Notice the pa- years above the We will con- role decision was made comply to with the sider these in questions turn. court order and “was not the result of an independent exercise of [the Commission’s] Patently, the may Commission discretion ... its practices.” under usual base its judgment as to on an inaccu The Commission reserved right the void rate predicate. Norton, factual Kohlman v. its new decision if the district court’s order 1073, 380 F.Supp. (D.Conn.1974); 1074-75 should be appeal.2 reversed or vacated on Elsea, 282, see v. Solomon 676 F.2d 287-89 appeal, On the argues Commission (7th Cir.1982) (per curiam). In ascertaining the district court improperly substituted its facts, however, the the may judgment for that of the Commission and take into consideration a range broad holding erred in that the Commission could information, including “such .. . relevant not consider the of the cab driver as part concerning prisoner information the ... offense as behavior in mak- ing its determination. may reasonably available.”3 This court represents original consider, 2. The Commission that if its mission if shall available and rele- Campbell expi- determination to continue until vant: upheld by (1) ration of term reports had been and recommendations which court, Campbell, district facility prisoner after allowance for the staff of the in which such good credits, make; time required may is confined months, custody in (2) remain or reports prisoner’s 136 until Febru- official 1984, ary being pursuant instead of record, released including report criminal or record the redetermination ordered the district probation parole experiences; of earlier Therefore, compli- court. the Commission’s (3) presentence investigation reports; ance with the district court’s order does not (4) regarding prison- recommendations moot, appeal render this since the effect our sentencing by er’s made time permit reversal of the district court is to sentencing judge; custody. Commission to return (5) mental, reports physical, psychi- or Garrison, 599, (4th See v.Gill 675 F.2d 600-01 atric examination of the offender. There Cir.1982); Eagles see also v. United States ex shall also be taken into consideration such Samuels, 304, 306-08, rel. 329 U.S. 67 S.Ct. concerning additional relevant information 313, 315-316, (1946); 91 L.Ed. 308 cf. United prisoner (including information submitted Ferri, (3d States v. F.2d 157 n. may prisoner) reasonably availa- Cir.1982) (Commission’s appeal not moot sim- ble. ply already complied because it had with dis- authority support no We know of dis- order). trict court suggestion sent’s Commission must disregard relevant evidence of state offense statute, applicable 3. The 18 U.S.C. adequate there is which factual basis (1976), provides: merely state chosen not because the press particular charge. making chap- The dissent’s determination under this implicates holding (relating parole) claim that the doctrine ter our release the Com- undisputed arrived may appears consider has held that the Commission Arnold, of rob- purpose in Beach hearsay, Zannino v. F.2d bank, Cir.1976); bing that he (3d counts of an indictment dismissed, United States abduction of cab that he waited which have been Warden, Goldberg (3d in while his two confederates com- ex rel. v. 622 F.2d the cab murder, Cir.), denied, and that after his con- cert. 449 U.S. 101 S.Ct. mitted cab, partici- returned to the (1980); and information federates 66 L.Ed.2d 91 ' using indictment, robbery in the bank the cab. pated Arias v. separate dismissed Commission, 648 F.2d United States that “the Campbell vigorously asserts Cir.1981). (3d inquiry 199-200 Our case establish that clearly facts in this [he] “is reviewing a Parole Commission decision did not what his co-defendants know only is a rational basis whether there murder, doing, participate did not embodied record for the Board’s conclusions knowledge Brief and had no of the same.” in its statement of reasons.” Zannino are at 3. These “facts” Appellee Arnold, 531 F.2d at 691. Campbell relies on “clearly established].” September 1980 from letter dated The 1980 Notice of Action identified Virginia prosecuting attorney only justifying one response let- written i.e. “the guidelines, decision above the charges for ters clarification of the seeking driver was taken into the woods and shot to Virginia. This prosecuted which he was death.” The had before it a letter does not “establish” that *5 Summary” 1973 “Classification knowledge of the murder. It prior had no Prisons; the prepared by Bureau states, part: in relevant progress report; pre a 1972 memorandum you charged all were Originally, three of Columbia pared the District of Board offenses, robbery, a number of ab- with Parole; Campbell’s presentence report; the duction, murder, etc. other two The parole hearing summary; the testimo of these offenses. The were convicted ny manager; Campbell’s of his case version charges against were dis- you murder facts; and, appeal, of the on administrative motion of the missed on Commonwealth the Vir by Campbell a letter solicited from reasons. While it would for several ginia prosecutor. state This material is re suppose you that knew been reasonable plete with references to the events sur taking Moye and Hudson were the rounding the of the cab driver. For murder at gunpoint, driver into woods cab example, pa the 1972 District of Columbia nevertheless, you you testified that did role in part memorandum stated “[t]he do, going were they not know what was subsequently Cabdriver taken to you evidence that actu- there was no was wooded area where he shot and killed ally murder. Further- participated confederates], by Subject while the [his more, with the you cooperated State waited in the taxi-cab.” The letter from other of the two. prosecution prosecutor, by state relied on most, added). At this letter indi- Campbell, (emphasis recounts the event in similar par- not physically did Summary fashion. The 1973 Classification cates that prior and that his ticipate in the murder reciting Campbell’s version of the facts at tri- proven never knowledge thereof was evinces his admission that the murder took not rest does al. Commission’s decision place and concedes his role in abduction Campbell had actual finding that robbery Although of the driver. on a cab knowledge the murder or court em Campbell argues, and the district Rather, stating presentence did therein. phasized, report following involved “offense behavior mention was cab driver factors: significance we in that fact. see no any proceed- indirectly, extravagant, state criminal is or of federalism since the Parole interfered, directly ing. Commission action has

Ill death,” taken into the guidelines woods and shot to grid consist of a table or referring Commission was to the undis- indices, formed two one severity puted fact that murder was committed of the offense and the other for Thus, connection with the robbery. the dis- prognosis of the prisoner based on what is holding trict court erred in that the Parole denominated as the “salient factor score.” Commission’s conclusion was “devoid of See 2.20 § C.F.R. Offense severi- factual basis.” ty categorized low, moderate, is low mod- 2. Could Commission properly consider erate, very high, I, or high, greatest great- the cab driver’s death as an aggravating est II. Salient scores currently factor? range (worst) (best) from and meas- Having pred established the factual prior convictions, ure factors such as decision, icate for the Parole Commission’s parole history, drug dependence at age we must next decide whether the Commis the time of the offense. An inmate is sion could consider the cab driver’s death as along scored each index and the time range an aggravating factor justifying a point at which the two indices meet years decision six above Pa guideline prisoner. for that guidelines role originally issued in Campbell’s offense was (robbery) rated predecessor, the Commission’s “very high”, given he was a salient factor Board, provide an effort score of guideline range was objective scientific and means structur 60-72 months. The Commission’s decision ing and institutionalizing pa discretion in in this keep ease was to custo- role decisionmaking release and in an at dy expiration sentence, until of his ap- or tempt to minimize the sentencing effects of proximately 136 months. Note, disparities. Parole Release Decision- making Sentencing Process, and the 84 Yale must, Although (1975) L.J. 822-23 as Yale [cited Note]. instance, first guidelines use the in deter use of given statutory mining the release of prisoner, 18 U.S.C. approval Congress in 1976when enacted the 4206(a) (1976),4it is not limited them. Act, Parole Commission and Reorganization *6 expressly statute authorizes de parole 94-233, Pub.L. No. 90 Stat. 18 U.S.C. guidelines cisions outside the where “good statute, 4201 et seq. (1976). That §§ cause” is determined to exist. 18 U.S.C. newly established the constituted United 4206(c) Congress recognized § that States Parole indepen Commission as an the definition “good of cause” “can not be a dent agency, requires federal the Commis precise one, because it must broad be sion “promulgate regulations rules and enough many to cover circumstances.” establishing guidelines” purpose the for of H.R.Rep. Cong., No. 94th 2d Sess. carrying parole decisionmaking out the power reprinted entrusted in 1976 Cong. it. U.S.Code & Ad. U.S.C. 4203(a)(1) (1976). § guidelines News 359.5 The them- 4206(a) provides: 4. Section 4203(a)(1), prisoner ant to section such shall (a) eligible prisoner substantially be If an released. observed the rules or of the institution insti- Report gives following confined, The Conference the tutions to which he has been if and examples Commission, as bases for upon decisions above the consideration of the guidelines: nature the and of circumstances the offense and history prison- the and characteristics of the example, making For in release er, determines: guidelines, determination above the the Com- (1) depreciate that release would not mission would consider factors which include promote seriousness of his offense or disre- prisoner whether or not was involved law; spect for the and degree sophis- an offense with an unusual (2) jeopardize that release would not planning, lengthy prior tication or or has a public welfare; record, part large conspir- or was of a scale subject provisions (b) of subsections acy continuing enterprise. or criminal section, (c) pursuant guide- of this promulgated pursu- lines the Commission of- increased “because the ranges bery, are should be time provide that selves “[t]hese occurring when kidnapping” included fense the circumstanc- Where merely guidelines. commandeered a three of his confederates warrant, guide- of the decisions outside es trunk, cab, in the the cab driver locked below) ren- (either may or be above lines aban- him there when the vehicle was left 2.20(c) (1982). Aggra- dered.” 28 C.F.R. § stated: doned. court may warrant deci- vating circumstances Thus, whether the only question mitigating cir- guidelines; above the sion “rationally” holding Peti- board acted a decision warrant below may cumstances kidnapping, responsible tioner 2.20(d). Id. charged or he was with that whether not factors which should Implicitly, simple fact is the Peti- offense. The are mitigating or considered un- responsibility, both tioner must bear guideline in the readily incorporable law and before the board der the criminal have been included categories they or parole, of his confederates for actions Instead, they themselves. This conspiracy. in furtherance their of the individ- depend on circumstances of vicarious liabili- simply is not issue case, was In it not unreason- ual case. this by the record is ty. The scheme disclosed to have concluded for the Commission able one, involving a particularly heinous was to hold appropriate it for human life. Petition- disregard total purposes accountable certainly er and confederates participated driver. He murder of cab’ necessary prepared do whatever driver; of the cab abduction case, In this it purpose. effectuate their the bank abduction was in furtherance of “necessary” for certain members became robbery; he his confederates watched to abduct cab and its conspiracy gun the woods at march the cab driver into cab, leav- and to later abandon he suggest point; and does helpless peril of his ing the driver any subsequent made effort to deter escape responsi- life. Petitioner cannot reject we Accordingly, harm the driver. bility by hiding his head in sand and Commission devi- claim blaming participat- others. He was a full Manual. Application ated from its Guideline conspiracy ing member of and shared there, a procedure pris- set forth Under of Parole could gains. its Board accountable for actions may oner held justly conclude that one who which he could committed associates particular concern in such scheme is which he should have controlled or about society. have known.6 166-67. We find F.Supp. circumstances were Strikingly similar distinguish unpersua- McArthur attempt court McArthur considered more may this there be even sive. case *7 Parole, F.Supp. Board of 434 United States Campbell responsible for the reason to hold mem., (S.D.Ind.1976), 559 F.2d aff’d his than McArthur acts of confederates (7th Cir.1977), prisoner chal- where when the on the scene since was lenged classify him decision while in was led to his murder driver by con- the basis of crime committed his apparently was not prisoner McArthur the federates. In that case Parole Board was thus not kidnapping. at the present severity rating to consider arbitrary held that the offense for the Commission as an who convicted of bank rob- the cab driver’s murder prisoner, was rob- factor. bery conspiracy to commit armed Cong., committed H.R.Rep. be held accountable for activities No. 94th 2d Sess. reprinted by (over prisoner Cong. & Ad.News which the had associates U.S.Code reasonably expect- no or could not control about). ed to know

6. The Manual states: Parole Commission Guideline United States prisoner is to be held accountable The Application III.E. Manual his done concert own actions actions others; however, prisoner with is not to argues also that if it was prop- Application Guideline Manual. See Guide- er for the Commission take the murder Application line at Manual V.B. 10. It is account, into it should have been used apparent from the record that these factors determining severity rating, his offense ignored. hearing not summary rather than an aggravating as factor. He Campbell’s referred to good record and self Nelson, the holding relies on in Brach v. 472 improvement; Examiner Alex noted that F.Supp. (D.Conn.1979), Com- he reached his decision to Camp- continue mission could not properly same use expiration bell to “even in view of his rela- scoring prisoner pursuant factor in good record”; tively and both hearing guidelines and an aggravating jus- as factor examiners the Virginia referred to sen- tifying a decision above the tence. presented That issue is not here because Campbell also contends the Commis- there no suggestion that the murder was sion failed to consider that he had cooperat- used determining ed authorities in the prosecu- offense behavior.7 placed “very tion high” be- of his co-defendants. category While neither cause of his involvement in the bank rob- the hearing summary nor the Notice of bery. Murder is among included the of- fact, Action refers to this the Commission is categorized fenses as “Greatest II” offense obliged to reward such cooperation. behavior. scoring Had murder been used in Application Guideline Manual cited Campbell’s offense, his guideline, when Campbell indicates that the Commission combined with his salient factor score of may consider cooperation a mitigating months, +100 with no if “prisoner has provided sub- upper Therefore, limit. treatment of cooperation government stantial to the ... murder as an aggravating factor rather which has been otherwise unrewarded.” than in determining the offense severity did V.; Application Guideline Manual at V.B. 8. prejudice. not inure his Compare Hearn (emphasis added). Contrary Nelson, F.Supp. 1115-16 claim, cooperation gone has not unre- (D.Conn.1980) (Commission cannot increase warded, since the same letter from the Vir- prisoner’s by using incarceration time fac- ginia prosecutor upon relies tor as aggravating rather using than it to cooperated the fact that he with the score severity). offense authorities cooperation also states that his 3. Was the obliged to find was one of the bases for dropping mitigating factors? charge against state murder him. Finally, Campbell complains that the sum, Campbell’s claim that the Com by failing Commission abused its discretion ignored mitigating mission factors is to consider mitigating argues factors. He supported weight record. The that the Commission gave weight no clearly accorded such factors is entrusted to fact that he has made “excellent institu the discretion of the Commission. See Solo adjustment”, tional has no disciplinary had Elsea, mon v. F.2d 289-91. problems Lewisburg, while incarcerated at legislative history of the statute makes that has in educational and voca explicit. H.R.Rep. No. 94th 2d Cong., programs, tional drug overcome his de 28, reprinted Cong. in 1976 Sess. pendence, general U.S.Code improved and has *8 351, (the weight given & Ad.News be maturity and socialization levels. He also

H5 deprived Commission has both Campbell of dismissed the murder charge of its own sixth and fourteenth amendment accord. Campbell did know what had rights,2 prosecutorial and invaded a arena become of the murder charge, and had to traditionally states, reserved to the thereby write to prosecutor’s office in order to deliberately disregarding spirit of Our find out. if Presumably, Campbell’s attor- Federalism. ney plea had entered .into a formal bargain with the attorney, Commonwealth’s Camp- I believe the instant case the bell have been plead asked to guilty by considering Commission erred to some charge and would have been con- murder, a factor which all it fairness had concerning sulted waiver his consti- right no to consider. The state of right tutional to defend himself at trial.3 prosecute did not convict Campbell or even Campbell But was never consulted. murder; it prossed nolle charge. prosecution restricted its to the bank If had Campbell been tried for the mur- robbery and a kidnapping charges. In let- acquitted, der and the Federal Parole Com- Campbell 29, ter to September 1980, dated mission would of course have prohibit- attorney Commonwealth’s wrote that from considering ed murder connec- the State had dismissed the murder charge tion with Campbell’s parole hearing. See on its own motion because Department had Regulations, Justice 28 gun, not carried a had not 2.19(c). C.F.R. Under the circumstances murder, the actual claimed that he did not it seems particularly unfair and ironic that murder, know that there would be a the Parole Commission should be allowed to because cooperated had with responsible hold for the murder Commonwealth against testifying precisely Virginia authorities, because the confederates. perhaps believing that charge prosecute, would be too difficult to or for By imposing upon Campbell a term of good reason, some other decided not to pur- incarceration crime for which he was it. sue prosecuted, never the federal com- mission has acted in a fundamentally unfair The instant is clearly distinguishable case manner inconsistent with our system of from those federal cases in which a criminal justice. criminal -defendant, an indirect highly pursuant but a plea bargain, fashion, effective it stripped Campbell pleaded guilty charge to a that did not of his sixth right amendment a fair trial reflect the true gravity his offense and charge, right the murder obliga- made subsequently early parole was denied be tory upon the states the fourteenth cause his parole board considered the actual amendment. nothing There is in the record facts of his crime. Arias v. United See to indicate that Campbell pled guilty Commission, (3d States Parole 648 F.2d 196 charge agreement or made any Cir.1981); ex Goldberg United States rel. v. Virginia prosecutor. contrary, Warden, On the Allenwood Federal Prison Camp, record indicates that (3d Cir.), denied, Commonwealth 622 F.2d 60 cert. 449 U.S. procedural matter, process 2694, 2697, 2. This is not a due U.S. 92 S.Ct. 33 L.Ed.2d “ involving questions but (1972), rather case though sub- Block held that ‘even process stantive due person “right” governmen- and federalism. There- has no to a valuable fore, Supreme opinion though Court’s government Green- tal benefit even holtz v. may Inmates Nebraska Penal & Correc- deny him the benefit number of Complex, tional reasons, U.S. 99 S.Ct. upon there are some reasons which ” (1979), describing procedural L.Ed.2d 668 government may rely.’ 631 F.2d at protections persons seeking parole due to re- 235-36. lease, apply does not here. As this court ob- Potter, (3d served in Block v. 631 F.2d 233 plead guilty” “guilty” 3. The decision to or “not Cir.1980), gov- Greenholtz does not authorize solely ais decision reserved for the accused (in entity state) ernmental that case a intelligent voluntary based on his choice. parole program operate has established a Alabama, Boykin 395 U.S. v. S.Ct. system arbitrary capricious in an fash- L.Ed.2d Quoting Sindermann, Perry ion. from *10 116 120, 118, 120, (1951)). 96 138 72 S.Ct. L.Ed.

871, 210, (1980). 66 91 In L.Ed.2d S.Ct. cases, Harris, Younger con- v. bargain specifically, an accused plea such More of sciously 746, (1971), risk conviction decides 27 L.Ed.2d 669 S.Ct. U.S. crime with which is for most serious the federal Court held that Supreme great to re- sufficiently justify charged is not, exceptional cir- should absent courts rights— his amendment sixth nunciation of cumstances, enjoin proceeding a criminal that he will be found any possibility and Younger holding state court. is certainty for the of exchange innocent —in only grounded not in fundamental doctrines charge. a lesser a conviction jurisprudence, of but also equity in a con- situation, con- Campbell made no instant cept which the Court characterized as “Our Campbell known that he Had scious choice. Black, writing As for Federalism.” Justice murder, he could punished was to be Court, Younger observed: right sixth amendment have exercised his restraining reason for underlying [The] Thus, the Parole Commis- by jury. to trial equity interfering of from courts made a factual determi- essentially has sion by is prosecutions criminal reinforced crime, effectively a state guilt nation of consideration, vital notion even more right present to denying Campbell is, proper respect “comity,” of proof requirement to of jury. case functions, recognition of the fact state doubt and the usual beyond a reasonable country up made of a the entire is arbitrarily dis- safeguards trial governments, of separate state Union generally bureaucratic fiat. See by carded Na- of the belief that a continuance Alschuler, Sentencing Reform and Parole will fare best if tional Government Guidelines, 51 U.Colo.L.Rev. Release their are left free institutions States perform separate their functions to my I brings This me to second concern. This, separate ways. perhaps for their believe that the Federal Parole Commission de- way of and clearer lack a better authority punish without it, many as “Our scribe is referred after had declined Federalism,” and one familiar with deliberately disregarding do so. In our Feder- profound debates that ushered respect action with the murder State’s is into existence bound to al Constitution Commission", charge, the Federal loyal remain respect those who as it with the federal offense concerned dreams of “Our Federalism.” ideals and robbery, intruded a matter of bank has into forgotten never be ... should of specific that is the concern the Common- Federalism,” slogan, “Our born this Virginia. wealth of days our of early struggling of Union Supreme United States Court States, place occupies highly important rights of long recognized the the states history our and its future. Nation’s particular administer their own laws —and 44-45, 91 at 750-751. Id. at S.Ct. ly their criminal laws —without undue fed prohibits the federal If “Our Federalism” part, the most eral intrusion. For Su interfering with the adminis- from courts preme has held that federal authori Court justice by enjoining prose- tration state ties interfere with state should administra courts, surely federal cutions state justice to the extent inter only tion such greater claim to abso- commissions have no constitutionally ference is mandated. As I believe that from this doctrine. lution the Court admonished in O’Shea v. Little ad- intrusions a federal indiscriminate ton, 414 U.S. 94 S.Ct. 38 L.Ed.2d into the exercise of agency ministrative (1973), we be always must mindful “ precluded are prosecutorial discretion state adjust ‘special delicacy sustain the intru- Such policy federalism. equi ment to preserved between federal state, dis- humiliating can sions power table administration of its State ” obliga- prosecutorial plan ruptive Id. at its own law.’ 94 S.Ct. belief that Minard, tions, of the historic (quoting 342 U.S. and heedless Stefanelli *11 our national interests are best if the served are permitted perform gov-

States their UNITED STATES of America ernmental functions in accordance with requirements. their distinctive of- Federal ANDERSON, Appellant. Ruth M. ficials should allowed to interfere No. 82-5410. arbitrarily with a state’s administration justice by affirmatively mandating the en- United Appeals, States Court of forcement aof state criminal statute. But Third Circuit. this is essentially what the Parole Commis- Argued March 1983. sion has done withholding Campbell’s because of crime April Decided prosecute authorities declined to him.

In I closing, note that it no makes differ- here

ence whether a federal action com-

plained against of runs directly the state against

courts or whether it runs some oth-

er unit government of state or local such as

the office of the prosecut- Commonwealth’s Goode,

ing In attorney. Rizzo v. 423 U.S. (1975), 96 S.Ct. 46 L.Ed.2d 561

Supreme applied Court doctrine

Younger prevent v. Harris to federal inter-

ference with the Philadelphia police depart-

ment. doing so Court observed that

the federal courts were not free to limit the

department’s freedom to conduct its own at 379,

affairs. Id. 96 S.Ct. at 608. Under Goode,

the rationale of Rizzo v. the Parole

Commission’s upon intrusion the exercise of by Virginia

discretion to administer its laws contrary also spirit of “Our Feder-

alism.”

In summary, I I dissent because believe

the United States Parole Commission de-

prived Campbell of his sixth and fourteenth rights

amendment and impermissibly tres-

passed upon the prerogative of the Com-

monwealth of Virginia prosse to nolle charge. I would therefore affirm judgment of the district court. notes the various items of information before the he faces a substantial sentence Virginia, solely province of may factor which be considered Commission “is within the mitigating discretion”). as under the Commission’s broad [its] Elsea, 282, 1,000 pounds greater In Solomon v. 7. 676 F.2d 286-87 session of an amount (7th Cir.1982) curiam), (per largest severity the held court that than the amount in the offense though quantity “good possessed range even of hashish for could serve as cause” a deci- severity category, pos- determined the offense sion above the his prison of Campbell expiration until court’s decision to We view the district severe, circum- but under the term was to reconsider require the Parole Commission that court this case we believe stances of eligibility without refer- Campbell’s parole arbitrary, irra- not term that decision could unjustified inter- the murder ence to tional, unreasonable, capri- or irrelevant discretion with the Commission’s ference cious. decisionmaking. parole of its the exercise judgment Congress has made we reverse reasons will foregoing For the courts should de- and not Commission court. the order of the district prisoners of within the release time termine by ROSENN, dissenting. the courts under the parameters Judge, set Circuit com- sentencing While there are statutes.8 court, the district majority The reverses parole decisions believe that mentators who holding United States Parole Com- that the by should be made as well as sentences contin- deciding lawfully mission acted the factors majority of judges since years six be- ue incarceration are based on evi- guidelines utilized of the guideline period because yond judge, see sentencing dence available confeder- murder committed 848, Congress chose vest in Yale Note at robbery. The Fed- preceding the bank ates for sole discretion this not- Commission took action eral Parole denying parole. The granting or Commis- con- withstanding Virginia authorities’ of guidelines reflect the exercise this sion’s of the decision to dismiss on motion sidered discretion and Commis- administrative charge the state murder Commonwealth sion not to adhere them inexora- is bound Camp- Campbell, though and even against bly. consider- The Conference Committee state sentences may yet lengthy bell serve ing Reorganiza- the Parole Commission robbery the bank for role in explicit tion Act made am of the taxi cab driver. I abduction for rea- could deviate from majority’s disagree with the constrained to irrational, arbitrary, sons “which are not disposition approval of the Commission’s unreasonable, capricious.” or opinion, punish- irrelevant my two accounts. 27, Cong., 2d R.Rep. Campbell H. No. 94th Sess. of murder ing1 crime Cong. de- reprinted in 1976 U.S.Code & Ad. which the Commonwealth prosecute, the Federal The to continue clined to News decision explicitly may impose Board itself has with a United States Parole 8. The trial court sentence prisoner “magic acknowledged under which the is cannot divine the maximum term that it only eligible parole after service of one third “reformed” moment” at which an offender has sentence, 4205(a) (1976); accordingly. § 18 U.S.C. Al release See and schedule his eligibility may point set a before one schuler, Sentencing Release Reform and Parole served, has been 18 U.S.C. third of the sentence Guidelines, (1980) 51 U.Colo.L.Rev. (1976); may 4205(b)(1) impose a or sentence § (citing Coffee, Repressed Sen Issues of prisoner eligible which the under Predictability, tencing: Accountability, time, 4205(b)(2) (1976). § 18 U.S.C. Sentencing Equality Commis in the Era of sion, regula (1978)). Its 66 Geo.L.J. 1. The Parole Commission’s decision to Federal retribution as a factor tions now cite upon Campbell impose a substantial additional making proc considered decision period of incarceration on account the mur Note, 4206(a). Pa ess. 18 U.S.C. See may properly der be described as decision to Reorganization Act: role Commission and “punish” Campbell for the murder. I would Impact Federal on the of Parole Guidelines reject any suggestion that the decision con Program Youth and Indeterminate Corrections nothing Campbell’s incarceration reflects tinue Rutgers Sentencing, L.Rev. profession more than the Parole Commission’s statement its letter The Parole Commission’s yet judgment al the effect that fully or rehabilitated. Rehabilitative reforma depre paroled now because that would incarceration, popular a dec tive theories of so offense, supports ciate the seriousness ago, widespread ade or two have come under Campbell’s incarceration Alschuler, the contention Sentencing Reform and attack. See substantially pur retributive Critique was extended A Pro Prosecutorial Power: Recent poses. posals "Presumptive” Sen for "Fixed” and tencing, (1978). The 126 U.Pa.L.Rev.