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Daniel v. Smoot

United States District Court, District of Columbia

June 11, 2018

ROY A. DANIEL, et al., Plaintiffs,
v.
J. PATRICIA WILSON SMOOT, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge

         This case is back before the court on a motion by Defendants the U.S. Parole Commission and its individual Commissioners (collectively, “Defendant” or “the Commission”), to reconsider the court's decision of February 13, 2018. See Mem. Op., ECF No. 99. That decision concerned a motion by Plaintiffs—individuals who remain incarcerated for D.C. Code offenses that occurred on or before March 3, 1985, but who have never received parole—to enforce a Settlement Agreement that requires the Commission to conduct Plaintiffs' parole hearings using the guidelines that were in place at the time of their offenses. Plaintiffs had alleged that the Commission was not carrying out its obligations under the Agreement in good faith, both with respect to its actual parole decisions and the scheduling of any subsequent hearings following a denial of parole. The court agreed with Plaintiffs only as to the latter issue, finding that the Commission, by ordering set-offs of greater than one year for the lion's share of offenders, was violating the mandate that rehearings “ordinarily” be held within one year. The court ordered the Commission to hold rehearings as soon as practicable for all inmates who had no recent disciplinary actions.

         Defendant now asks the court to revisit its decision on grounds that the order is contrary to the terms of the parties' Settlement Agreement, improperly cabins the Commission's discretion, and assigns undue weight to Plaintiffs' evidence. Upon consideration of the parties' arguments and evidence, the court denies in part and grants in part Defendant's motion.

         II. BACKGROUND

         A. History of the Parole Guidelines

         The court begins with some historical background. Until 1997, the District of Columbia Board of Parole (“Board”) made parole determinations for D.C. Code offenders. Between 1972 and 1985, the Board applied a set of guidelines that it had adopted in 1972 (“1972 Guidelines”). The 1972 Guidelines supplied non-exhaustive factors for the Board to consider when making parole determinations. See 9 D.C.R.R. § 105.1 (1972). If the Board denied parole, the 1972 Guidelines provided a general rule for imposing “set-offs, ” that is, the time period between the denial of parole and the next parole consideration hearing, or “rehearing.” See 9 D.C.R.R. § 103 (1972). The rule stated as follows:

All prisoners serving a maximum sentence of less than five years who were denied parole at their original parole hearing will ordinarily be granted a rehearing no later than six months after the Board's last action.
Prisoners serving a maximum sentence of five years or more who were denied parole at their original hearing ordinarily will receive a rehearing one year after the last action taken by the Board. . . .
In all cases of rehearings, the Board reserves to itself the right to establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved or the time remaining to be served.

Id. (emphasis added). Although the 1972 Guidelines granted the Board discretion to deviate from the “ordinary” one-year set-off, it was silent as to the factors that might warrant a departure. See id.

         The Board adopted new parole guidelines in 1985, which came to be known as the “1987 Guidelines, ” in reference to the year they were published. See Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes, 80 Fed. Reg. 63, 115-01, 63, 115 (Oct. 19, 2015) (Final Rule) (noting a March 4, 1985, effective date for the “1987” regulations, which replaced the 1972 regulations); see also Sellmon v. Reilly, 551 F.Supp.2d 66, 85 (D.D.C. 2008) (noting that the 1987 regulations were “formally adopted in 1985 and published in May 1987”). The 1987 Guidelines contained a rule similar to that of its predecessor regarding rehearings. It, too, stated that individuals serving maximum sentences of five or more years “ordinarily shall receive a rehearing one (1) year after the last action taken by the Board, ” though the Board retained discretion to establish any rehearing date it deemed proper. D.C. Mun. Regs. tit. 28, § 103 (1987). Like the 1972 Guidelines, the 1987 Guidelines did not specify criteria the Board could consider in deciding whether to impose a set-off of greater than one year.

         For decades, the Board made set-off determinations under the operative Guidelines, and those alone. But that changed in the early 1990s. In late 1991, the Board adopted, and then amended in early 1992, policy guidance that for the first time gave shape to the Board's discretion in scheduling rehearings. See D.C. Board of Parole, Policy Guideline, Reconsideration Hearings-—Establishing Dates, April 27, 1992 [hereinafter 1992 Policy Guideline]. The 1992 Policy Guideline enumerated multiple, non-exhaustive aggravating and mitigating factors that the Board could consider when determining whether to assign an offender a rehearing date that was later or earlier than the one-year norm. See id. §§ V.A.2, V.A.3. Aggravating factors included: that “[t]he instant offense involved ongoing criminal behavior of leadership role in an organized, criminal venture”; “a lengthy history of criminally-related alcohol and/or substance abuse”; “an unusually extensive or serious prior record (at least five felony convictions)”; “[t]he instant offense involved unusual cruelty to victim(s) or involved especially vulnerable victims”; and “repeated or extremely serious negative institutional behavior.” Id. § V.A.2. Mitigating factors included: that the defendant “has been [an] exceptional program participant”; “a record of exclusively trivial offenses”; “a substantial crime-free period since the last offense”; and “[t]here has been a substantial previous period in custody on other sentence(s) or the prisoner faces a substantial period of time on additional committed sentences.” Id. § V.A.3. Thus, although one year remained the norm for a set-off under the 1992 Policy Guideline, the Board now had defined factors that would warrant a departure, including notably the severity of the offense conduct.

         Congress eliminated the D.C. Board of Parole in 1997 and assigned the Board's task of making parole decisions for persons convicted of violations of District of Columbia law to the United States Parole Commission. Balanced Budget Act of 1997, Pub. L. 105-33, § 11231(a)-(b). In 2000, the Commission adopted new guidelines for D.C. Code offenders (“2000 Guidelines”). See 28 C.F.R. §§ 2.70 et seq. The 2000 Guidelines required the Commission assign numerical values to aspects of an individual's pre- and post-incarceration history, and then use that number as a proxy for the risk posed by the offender in making paroling decisions. 28 C.F.R. § 2.80(b)- (n); see also Sellmon, 551 F.Supp.2d at 73. As to set-offs, the 2000 Guidelines called for a presumptive three-year time period between parole consideration hearings, 28 C.F.R § 2.75(a)(1)(iv), while granting the Commission discretion to shorten that period if “new and significant information concerning the prisoner” became available, id. § 2.75(e).

         B. Procedural Background

         1.The Initial Litigation

         Plaintiffs[1] are individuals who were convicted of D.C. Code offenses that occurred on or before March 3, 1985, and who became eligible for parole on or after August 5, 1999, but remain incarcerated. Pls.' Mem. in Supp. of Mot. to Enforce Settlement Agreement, ECF No. 82 (under seal) [hereinafter Pls.' Mem. to Enforce], at 1; see also Stipulation of Settlement & Dismissal, ECF No. 77 [hereinafter Settlement Agreement], at 1. They filed this action challenging the U.S. Parole Commission's use of the 2000 Guidelines, instead of the 1972 Guidelines that were in place at the time of their offenses, as violating the Ex Post Facto Clause and Due Process Clauses of the U.S. Constitution. See generally Compl., ECF No. 1. The gravamen of Plaintiffs' Complaint was that Defendant's application of the 2000 Guidelines created a “significant risk” of an increased minimum sentence that Plaintiffs had to serve before becoming eligible for parole. Id. ¶ 313. In other words, Plaintiffs alleged that applying the 2000 Guidelines prolonged their terms of incarceration relative to the 1972 Guidelines. See, e.g., id. ¶ 88; see also Id. ¶¶ 52, 54, 56, 63, 69. As relief, Plaintiffs asked the court to direct the Commission to hold immediate rehearings for themselves and similarly situated offenders and to order the Commission to apply the “Parole Board's statutes, regulations, guidelines, policies and practices that were in effect at the time” their offenses were committed, meaning the 1972 Guidelines. See Id. ¶¶ 65-66.

         Although the Complaint focused primarily on the risk of prolonged incarceration under the Commission's 2000 Guidelines relative to the Board's 1972 Guidelines, the Complaint contained a single paragraph regarding the difference in the timing of rehearings under the two regimes. Specifically, Plaintiffs alleged:

[U]nder both the 1972 Regulations and the 1987 Guidelines, even if the Board denied parole to a prisoner serving a sentence greater than five years, he would only have to wait one more year for another opportunity at parole. By comparison, under the 2000 Guidelines the same prisoner must wait at least three years, possibly more, for another parole hearing even when he was already within his 2000 Guidelines range at his first hearing.

Id. ¶ 111. And, while the Complaint generally asked the court to order the Commission to apply the 1972 Guidelines, Plaintiffs sought no specific relief concerning the Board's set-off policies and practices.

         The district court initially dismissed the class-action Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Daniel v. Fulwood, 823 F.Supp.2d 13, 15 (D.D.C. 2011), rev'd, 766 F.3d 57 (D.C. Cir. 2014). The D.C. Circuit, however, reversed, holding that Plaintiffs “raised a plausible claim that the application of the [2000 Guidelines] to their cases violates the Ex Post Facto clause” because those rules and their application “indicate that [Plaintiffs] are subject to a long presumptive period of parole unsuitability that would not have applied to them under the 1972 Guidelines.” Daniel, 766 F.3d at 66. The D.C. Circuit, however, made no mention of the two regimes' respective rules on the timing of rehearings. See generally id.

         2. Proceedings on Remand

         The Circuit's decision set in motion a series of events that ultimately ended with the Settlement Agreement that is the subject of the motion presently before the court. With the case on remand in the spring of 2015, Defendant stated to the court that it was considering “a rule change that would grant hearings to Plaintiffs pursuant to the 1972 regulations.” See Def.'s Mot. to Dismiss, ECF No. 68 [hereinafter Def.'s Nov. 11, 2015, Brief], at 5 (summarizing representations Defendant made to the court at an April 29, 2015 status conference). While the Commission was considering such action, Plaintiffs filed an Amended Complaint that repeated the substance of their initial complaint, including, once again, only a passing reference to the timing of rehearings. See generally Am. Compl., ECF No. 50; see also id. ¶ 105.

         Soon thereafter, on October 14, 2015, Defendant promulgated and published a new rule, 28 C.F.R. § 2.80(p) (“New Regulation”). Def.'s Nov. 11, 2015, Brief at 5; see 28 C.F.R. § 2.80(p). The New Regulation, generally speaking, provided that the Commission would “apply the parole guidelines of the former District of Columbia Board of Parole that were in effect until March 4, 1985, in its parole decisionmaking for D.C. Code prisoners who committed their offenses while those guidelines were in effect.” 80 Fed. Reg. at 63, 115. In other words, by adopting the New Regulation, the Commission through rulemaking agreed to apply the 1972 Guidelines to Plaintiffs. On the subject of rehearings, the New Regulation provides:

A prisoner who committed the offense of conviction on or before March 3, 1985 who is not incarcerated as a parole violator and is serving a maximum sentence of five years or more who was denied parole at their original hearing ordinarily will receive a rehearing one year after a hearing conducted by the U.S. Parole Commission. In all cases of rehearings, the U.S. Parole Commission may establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved. No hearing may be set for more than five years from the date of the previous hearing.

28 C.F.R. § 2.80(p)(5). This text of the New Regulation is nearly identical to that found in the 1972 Guidelines. Compare 28 C.F.R. § 2.80(p)(4)-(5), with 9 D.C.R.R. §§ 105.1, 103 (1972).

         The Commission's rulemaking set the table for resolving this matter. On December 18, 2015, two months after the adoption of the New Regulation, Plaintiffs and the Commission entered into a Settlement Agreement, the centerpiece of which was the Commission's commitment to apply the New Regulation in “good faith.” See Settlement Agreement at 2. Under the Agreement's terms, the Commission also promised to conduct initial parole hearings under the terms of the 1972 Guidelines for all Plaintiffs, including those who had received parole denials under the 2000 Guidelines. See Id. The court approved the Settlement Agreement on February 10, 2016. Id. at 9.

         Over the next seven months, the Commission held initial parole hearings under the 1972 Guidelines for 56 offenders, granting parole to some but denying parole to most. Mem. Op. at 7; see Pls.' Mem. to Enforce, Ex. 2, ECF No. 82-1 [hereinafter Parole Records], at 1. Additionally, for those offenders denied parole, the Commission ordered set-offs of more than one year in the vast majority of cases. See Parole Records at 1.

         3. Plaintiffs' Motion to Enforce

         The Commission's predominantly adverse parole decisions prompted Plaintiffs, on April 27, 2017, to file a motion to enforce the Settlement Agreement (“Motion to Enforce” or “Plaintiffs' Motion”). See Pls.' Mot. to Enforce Settlement Agreement, ECF No. 81; Pls.' Mem. to Enforce. Plaintiffs alleged that the Commission was not “in good faith” applying the 1972 Guidelines— both with respect to parole decisions and to the scheduling of rehearings—and sought a court order directing the Commission to comply with the terms of the agreement. Pls.' Mem. to Enforce at 5- 10. As to the latter issue, Plaintiffs objected to the Commission's setting of rehearings two or more years into the future, because the 1972 Guidelines, as well as the New Regulation, provided that set-offs “ordinarily” would be one year. Id. at 9-10. Parole records showed that of the 37 individuals who were denied parole at their initial hearings held pursuant to the Settlement Agreement, only four—less than 11%—received one-year set-offs; the rest received two-, three-, four-, or five-year set-offs. Parole Records at 1.

         To buttress their claim, Plaintiffs submitted a declaration from Walter Ridley, who was the chairman of the District of Columbia Parole Board “in 1985 and 1986.” Pls.' Mem. to Enforce, Ex. 1, ECF No. 82-1 [hereinafter Ridley Decl.], at 1. According to Ridley, the D.C. Board “very seldom” scheduled set-offs for greater than one year, and it assigned longer rehearing dates “only if the person had serious disciplinary infractions or other institutional problems since their last parole hearing.” Id. at 1-2. Ridley further attested that the nature of the applicant's offense of conviction was not relevant to a Board ...


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