United States District Court, District of Columbia
ROY A. DANIEL, et al., Plaintiffs,
J. PATRICIA WILSON SMOOT, et al., Defendants.
P. Mehta, United States District Judge
in this matter are D.C. Code offenders who remain
incarcerated for serious felonies committed before March 3,
1985. Plaintiffs brought this action challenging the United
States Parole Commission's practice of applying to
Plaintiffs' parole eligibility determinations the
Commission's regulations that were adopted in 2000,
instead of the 1972 guidelines of the now-defunct District of
Columbia Parole Board, which were in effect when Plaintiffs
committed their offenses. After over five years of
litigation, which included a successful appeal by Plaintiffs
to the D.C. Circuit, the parties reached a Settlement
Agreement on December 18, 2015. Under the settlement's
terms, the Commission agreed that it would hold remedial
parole hearings for Plaintiffs and, “in good faith,
” apply to those proceedings a newly adopted Commission
regulation that incorporated key elements of the 1972
guidelines. Additionally, the parties stipulated that this
District Court would maintain jurisdiction over the matter to
enforce the terms of the agreement.
now have returned to court because they assert that the
Commission is in breach of the Settlement Agreement. They
contend that, contrary to the Settlement Agreement, the
Commission is not in good faith applying the criteria for
parole determinations contained in the 1972 guidelines.
Additionally, they contend that the Commission is acting
contrary to the 1972 guidelines by routinely scheduling
rehearings more than one year into the future for Plaintiffs
who were denied parole. Plaintiffs have moved to compel the
Commission to comply with the Settlement Agreement and to
adhere to the 1972 guidelines.
considering the parties' legal memoranda and the record,
the court finds that: (1) the record does not support
Plaintiffs' assertion that the Board is not faithfully
applying the 1972 guidelines when making parole
determinations, but (2) that the Commission, by regularly
setting parole rehearing dates more than one year after
denying a Plaintiff parole, is acting inconsistently with the
1972 guidelines. Accordingly, for the reasons that follow,
the court grants in part and denies in part Plaintiffs'
Motion to Enforce Settlement Agreement, ECF No. 81.
Genesis of this Action
case dates back to 2010, when Plaintiffs filed a class
action on behalf of themselves and similarly situated
prisoners against Defendants, who are members of the United
States Parole Commission (“Commission, ” and
collectively, “Defendant”). Plaintiffs are
individuals who were convicted of serious felonies under the
D.C. Code that occurred before March 3, 1985, have completed
their minimum sentences, and thus are eligible for parole.
Pls.' Mem. in Support of Motion to Enforce Settlement
Agreement, ECF No. 82 (under seal) [hereinafter Pls.'
Mem.], at 1. This action challenged the Commission's
application of parole rules created in 2000, rather than the
rules that were in place at the time of Plaintiffs'
offenses, as violating the Ex Post Facto Clause of the
Constitution and Plaintiffs' due process rights.
See Am. Compl., ECF No. 50, ¶¶ 1-7,
time of Plaintiffs' offenses, the District of Columbia
Board of Parole (“D.C. Board”) administered
parole for persons convicted of violations of the D.C. Code
and did so using parole guidelines that it issued in 1972.
Id. ¶¶ 4-6, 20; see 9 D.C.R.R.
§§ 105.1, 103 (1972). Congress, however, eliminated the
D.C. Board in 1997 and tasked the Commission with making
parole decisions for persons convicted of violations of
District of Columbia law. Pub. L. 105-33, § 11231(a),
(b); Am. Compl. ¶¶ 22-23. Subsequently, the
Commission adopted a new set of guidelines in 2000 and began
applying them to Plaintiffs as they became eligible for
Complaint, Plaintiffs objected to the Commission's use of
the 2000 guidelines out of concern that those rules would
inappropriately prolong their incarceration because they were
more punitive than the 1972 guidelines. See Am.
Compl. ¶¶ 52-54, 56, 62, 69. Plaintiffs alleged
that the 2000 guidelines made it “impossible for an
offender convicted of a violent crime resulting in death to
be found suitable for parole at the initial hearing, ”
and that such offenders were “presumed non-suitable for
parole” until they served substantial periods of time
beyond their minimum sentences. Id. ¶¶
87-88. By contrast, they maintained that under the 1972
guidelines, an offender could be paroled after serving the
minimum sentence. Id. ¶ 88. Plaintiffs also
alleged that decisions using the 2000 guidelines placed
greater weight on disciplinary infractions committed during
their incarceration, as compared to the emphasis placed on
that factor under the 1972 guidelines. Id.
¶¶ 54, 95, 97.
trial court dismissed the Complaint, but the D.C. Circuit
reversed. See Daniel v. Fulwood, 766 F.3d 57 (D.C.
Cir. 2014). The Circuit held that Plaintiffs had pleaded
sufficient facts to give rise to the “reasonable
inference that the 2000 Guidelines create a significant risk
of prolonging [Plaintiffs'] incarceration in comparison
to the 1972 Guidelines.” Id. at 66.
Proceedings Following Remand
remand, and after a period of notice and comment, the
Commission promulgated a new regulation, 28 C.F.R. §
2.80(p), that would apply to Plaintiffs (“New
Regulation”). The New Regulation, which took effect on
October 19, 2015, requires the Commission to apply the
factors set forth in the D.C. Board's 1972 guidelines
when making parole determinations for persons convicted of
violations of the D.C. Code that occurred on or before March
3, 1985. See 28 C.F.R. § 2.80(p)(4). The New
Regulation accomplishes this by copying, nearly verbatim, the
text of the 1972 guidelines. Compare 28 C.F.R.
§ 2.80(p)(4)-(5), with 9 D.C.R.R. §§
105.1, 103; see also Def.'s Opp'n, ECF No.
88, at 1 (noting that the adopted rule “modelled the
1972 guidelines verbatim”). Thus, with regard to parole
suitability criteria, the New Regulation applicable to
(4) Factors considered: Among others, the U.S. Parole
Commission takes into account some of the following factors
in making its determination as to parole:
(i) The offense, noting the nature of the violation,
mitigating or aggravating circumstances and the activities
and adjustment of the offender following arrest if on bond or
in the community under any pre-sentence type arrangement.
(ii) Prior history of criminality, noting the nature and
pattern of any prior offenses as they may relate to the
(iii) Personal and social history of the offender, including
such factors as his family situation, educational
development, socialization, marital history, employment
history, use of leisure time and prior military service, if
(iv) Physical and emotional health and/or problems which may
have played a role in the individual's socialization
process, and efforts made to overcome any such problems.
(v) Institutional experience, including information as to the
offender's overall general adjustment, his ability to
handle interpersonal relationships, his behavior responses,
his planning for himself, setting meaningful goals in areas
of academic schooling, vocational education or training,
involvements in self-improvement activity and therapy and his
utilization of available resources to overcome recognized
problems. Achievements in accomplishing goals ...