them by the 1932 Act. He agreed with the holding in Story that "the 1934 amendment simply ensured that a particular change in custody did not result in the denial of any opportunity for parole altogether."
Judge Bork correctly notes that the majority in Cosgrove departs from the traditional rule used in parole determinations of applying the law of conviction without reference to the place of incarceration. In this respect, the Court finds Judge Bork's reasoning persuasive. However, the conclusion drawn in his dissent is more difficult to accept. It is clear from the available legislative history that the statute was intended to give the U.S. Commission the power to implement the D.C. parole law. The President of the Board of Commissioners wrote: "The purpose of the proposed bill is to confer upon the Federal Parole Board the same power over prisoners convicted in the District and confined in the Federal penal institutions as is conferred by said act upon the District Parole Board over prisoners confined in the penal institutions of the District." Sen. Rep., No. 687, 73rd Cong., 2nd Sess., 1. There is no support for the inference that Congress intended simply to reinvest the U.S. Commission with jurisdictional power over D.C. inmates. The legislative history, notwithstanding its dearth, appears to reflect that Congress intended the U.S. Commission to implement D.C. parole laws. The Court finds, therefore, that the legislative history and past judicial interpretations of § 24-209 suggest that Congress meant for all D.C. parole laws to be utilized by the U.S. Commission in rendering parole determinations for D.C. offenders in federal custody.
Indeed, other courts who have addressed this issue have found in plaintiffs' favor. In Johnson v. Williford, 821 F.2d 1279 (7th Cir. 1987), the Court examined the plain language and the legislative history of the section and concluded that the intent of Congress in enacting § 24-209 was to have all of the D.C. Board's rules and regulations applied to all D.C. offenders, whether housed in D.C. or federal institutions. "The 'same power and authority' language of § 24-209 enables the U.S. Commission to make the parole-release determination for D.C. Code offenders housed in federal prisons but requires that body to employ D.C. laws and regulations in making such decisions." Id. at 1288. The Second Circuit in Walker v. Luther, 830 F.2d 1208 (2nd Cir. 1987) and the Eighth Circuit in Brewer v. Swinson, 837 F.2d 802 (8th Cir. 1988) agreed with the reasoning employed in both Johnson and Cosgrove.
Moreover, the Seventh Circuit examined the practical implications of applying federal guidelines and D.C. statutes to a given parole determination. In Johnson, the plaintiff had his initial parole hearing delayed because of the application of D.C. parole laws and then was not "scheduled for another full hearing for 10 years, until 1992 -- due to the use of federal parole regulations -- instead of receiving a full hearing the next year and every year thereafter, as would have been the case if D.C. parole laws and regulations had consistently been employed to determine his eligibility for parole hearings." Id. at 1287-88. Thus, the Court finds that an examination of the legislative history, past judicial interpretations of § 24-209, as well as practical considerations suggest that Congress meant for all D.C. parole laws to be utilized by the U.S. Commission in rendering parole determinations for D.C. offenders in federal custody.
IV. D.C. Guidelines As Law
The issue then is whether D.C. parole guidelines should be considered laws? The federal defendants now concede that they must apply the statutes of the D.C. Parole system but assert that they need not apply its guidelines. Thus, the Court must focus on the difference in power and effect between statutes and guidelines or regulations. If guidelines can be considered sufficiently law-like in nature, then the D.C. guidelines must be utilized by the U.S. Commission. On the other hand, if the Court concludes that guidelines are more akin to policy statements than laws, federal defendants may be permitted to apply their own guidelines.
In Walker v. Luther, 830 F.2d 1208, 1216 (2nd Cir. 1987), the Second Circuit held that the U.S. Commission must implement the D.C. guidelines as well as its statutes. The Court found that Congress does not differentiate between statutes and regulations in the parole area. Thus, there was no authority to support defendant's claim that Congress meant for the Commission to use only the statutes and not the guidelines in determining parole for D.C. Code offenders.
The Court must determine whether Congress intended to differentiate between statutes and guidelines in the application of § 24-209. The defendants argue that it did. The term "vested" as it is used in § 24-209, defendants submit, means that power which is conferred by Congress. As guidelines are promulgated by the Board and not by Congress, these guidelines are not power "vested" in the Commission by Congress. Thus, the guidelines were not part of the "power and authority" to which Congress referred in the statute.
This argument is not compelling. In § 24-201(a), which creates the D.C. Board of Parole, Congress specifically provided that "the Board of Parole . . . shall have power to establish rules and regulations for its procedure." Therefore, in addition to creating the D.C. Board and granting it jurisdiction to parole its own offenders, Congress granted the D.C. Board power to establish rules and regulations pursuant to statute. Therefore, the guidelines promulgated by the D.C. Board are part of the "power" vested in the Board by Congress.
The federal defendants maintain that the guidelines are mere enforcement policy and not substantive rules as defined by the Supreme Court in Chrysler Corp. v. Brown, 441 U.S. 281, 301-03, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1978). As such, they contend, the guidelines do not carry the force and effect of law and may not be imposed upon the U.S. Commission. In the Chrysler case, the Supreme Court found that two criteria must be satisfied for an agency regulation to have the force and effect of law: the regulation must affect "individual rights and obligations" and must be promulgated pursuant to, and in accordance with, an act of congress.
Applying the rather broad test articulated in Chrysler, the Court finds that the guidelines do have the force and effect of law. The parole guidelines affect "individual rights" as they guide the determination of parole and were clearly promulgated pursuant to an act of Congress. While defendant correctly points out that the regulations are subject to change by the Board, this does not immediately turn them into mere "policy statements". They are regulations which determine the rights of prisoners to be free from incarceration.
The federal defendants also point to Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977), in support of their proposition that the guidelines do not have the force and effect of law. In Ruip, the Sixth Circuit was asked to determine whether federal "administrative guidelines on parole come within the prohibition against ex post facto laws." Id. at 1335. It found that "these guidelines [do not] have the characteristics of law" and thus would not be considered ex post facto laws. "The Commission" wrote the Court, "remains free to make parole decision outside of these guidelines." Because of this flexibility, the court reasoned, that the guidelines do not carry the force and effect of law.
Defendants argue that the holding in Ruip mandates a finding that the D.C. guidelines are similarly policy-like and are, therefore, not part of the "authority" transferred to the U.S. Commission by way of § 24-209. It does not appear, however, that the reasoning employed in Ruip has been followed in this Circuit. Careful research reveals that this Circuit has not adopted the test articulated in Ruip for determining the difference between policy statements and law. Several cases have articulated a different approach to the issue.
One case in point, Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107 (D.C.Cir. 1974), involved a group of inmates who challenged the U.S. Board of Parole's guidelines, claiming that because there had been no rule-making proceedings held before their passage, the guidelines were invalid under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. Defendants argued that the guidelines were mere policy statements which are not subject to the notice and comment requirements of the APA.
The Court found to the contrary and held that these guidelines were calculated to have a substantial effect on important parole decisions. And while the guidelines do not produce a formula for determining parole suitability, leaving room for the exercise of individual discretion, they "help focus the decision-maker's attention on the Board-approved criteria. They thus narrow his field of vision . . . [and because] they define a fairly tight framework to circumscribe the Board's statutorily broad power . . . they are substantive agency action." Id. at 1113. See also, Guerra v. Meese, 614 F. Supp. 1430 (D.D.C. 1985)(where the Court, following Pickus, extended its reasoning to conclude that the Notes and Procedures provision, a directive issued by the Commission, had the force and effect of law.)
The Court finds the reasoning in Pickus more compelling. Both Ruip and Pickus were decided before the Supreme Court's ruling in Chrysler and while the latter does not overrule either of the two lower court cases, the reasoning employed in Pickus is closer to that found in Chrysler. Ruip does not mention the important guidepost articulated in Chrysler for determining if a rule has the effect of law; that is, does it effect substantive rights. That issue is never discussed in Ruip and diminishes the persuasiveness of its holding.
Accordingly, the Court finds that the D.C. guidelines have the force and effect of law. They are substantive regulations which affect the individual rights of D.C. Code offenders whereever incarcerated. Moreover, they sufficiently define the scope of parole suitability such that they can be distinguished from mere policy statements. They are, therefore, part of the "power and authority" vested by Congress to the D.C. Board.
V. Similarity in Guidelines
The federal defendants argue that even if the Court finds that § 24-209 mandates application of the D.C. guidelines, they may be free to implement the federal equivalent. This is so, they claim, because the two sets of guidelines are substantially similar.
The District of Columbia Board of Parole did not promulgate the parole guideline at issue herein until March 4, 1985.
The guidelines emphasize early release of an offender who responds favorably to rehabilitative efforts. The federal guidelines, enacted in 1976, in contrast, are primarily concerned with punishment and the public safety in determining parole suitability. While the differences between the two sets of guidelines do not appear to be as dramatic as plaintiffs have characterized, there are significant disparities.
When the D.C. Board was in the process of promulgating its guidelines, it had the 1976 federal guidelines as a guide. However, the federal guidelines were not adopted and the Court finds this rejection significant.
Furthermore, the Court notes that there are important differences between the two systems. For example, while the Board did adopt the idea of a Salient Factor Score from the federal guidelines, the factors employed to reach this score are different. The Board utilizes four factors to determine suitability for parole: two pre-incarceration factors and two post-incarceration factors. This is done to ensure that the prisoner's behavior while incarcerated is considered. The Commission uses only two pre-incarceration factors, thus de-emphasizing any rehabilitative results from incarceration. Moreover, while the pre-incarceration factors are similar,
the failure of the U.S. Commission to consider post-incarceration behavior in reaching a parole decision, renders the two systems substantially dissimilar.
Finally, on a more practical note, the Seventh Circuit in Johnson v. Williford, 821 F.2d 1279, 1285 (7th Cir. 1987) demonstrated the differences between the two sets of guidelines by way of illustration. The Court noted that "[a] person . . . who has been denied parole and for whom no presumptive release date has been set, will not receive a full parole reconsideration hearing for 15 years under federal regulations, but would receive one every year under D.C. regulations." Indeed the Court of Appeals in Cosgrove v. Smith, 225 U.S. App. D.C. 235, 697 F.2d 1125, 1133 (D.C.Cir. 1983), noted after a discussion of the federal guidelines, that "the District of Columbia Board does not employ similar guidelines in making parole decisions." For these reasons, the Court finds that there are significant differences between the D.C. guidelines and those used by the U.S. Commission. Accordingly, the Court finds that the federal defendants may not use its own parole guidelines in lieu of the D.C. regulations.
While the legislative history and plain meaning of the statute are not definitive on the issue, they do tend to support plaintiffs' position that Congress intended, in enacting § 24-209, that all of the laws and regulations applied by the D.C. Board be utilized by the U.S. Commission as well. Moreover, this Circuit has held that parole guidelines have the force of law and thus are part of the "power and authority" vested in the D.C. Parole Board and granted to the U.S. Parole Commission pursuant to § 24-209.
Accordingly, they must be applied to D.C. Code offenders incarcerated in federal institutions. For all of the reasons discussed above, the Court grants the motion of plaintiffs for summary judgment, and denies the motion of federal defendants to dismiss. An Order consistent with this Memorandum Opinion will issue.
ORDER - December 30, 1988, Filed
Upon consideration of the motion of defendant, District of Columbia to dismiss, the opposition thereto, and the accompanying Memorandum Opinion, it is this 30th day of December, 1988,
ORDERED that the motion of the District of Columbia to dismiss be, and hereby is, denied.
ORDER - December 30, 1988, Filed
Upon consideration of the motion of the plaintiff class for summary judgment on liability, the cross-motion of the federal defendants for summary judgment, supporting and opposing memoranda, the record, and the accompanying Memorandum Opinion, it is this 30th day of December, 1988,
ORDERED that the cross-motion for summary judgment of the federal defendants be, and hereby is, denied; it is further
ORDERED that the motion of the plaintiff class for summary judgment be, and hereby is, granted; and it is further
ORDERED that the parties shall have thirty days from this date within which to submit proposals as to the appropriate remedy.