On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 81-0553)
Before: HIGGINBOTHAM, BECKER, Circuit Judges, and COHILL, District Judge*fn*
This case, before us for the second time, presents the question whether the Adult Guidelines for Parole Decisionmaking of the United States Parole Commission constitute "laws" within the meaning of the ex post facto clause of the United States Constitution.*fn1 In early 1980, appellee, Lawrence Forman, was given a "presumptive release date" based on Commission guidelines promulgated in 1979, see 28 C.F.R. § 2.20 (1979), as applied to Forman's convictions for offenses committed between 1967 and 1974. In United States ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983) (" Forman I "), a panel of this court held that application of the 1979 guidelines to Forman was retrospective and to Forman's detriment. The panel further held that the guidelines would constitute laws for purposes of the ex post facto clause if they are applied without "substantial flexibility." The panel remanded the case for development of a full factual record concerning the manner in which the Commission applied the guidelines in practice.
On remand, the district court accepted written submissions by the parties and held a hearing during which it considered statistical evidence and expert testimony. The court found that the evidence revealed the absence of substantial flexibility in the application of the guidelines, and accordingly held that the guidelines constitute "laws" for ex post facto purposes. We have carefully reviewed the record developed on remand and conclude that it unequivocally demonstrates that the guidelines are applied with substantial flexibility. We therefore reverse.
The procedural history of this case was recounted at length in Forman I ; a brief description of Forman's situation and our prior opinion will therefore suffice.
Forman was convicted of evading more than $2,000,000 in taxes between 1967 and 1974. When he received his initial parole hearing, in early 1980, the Parole Commission applied the then-current parole guidelines, promulgated in 1979. See 28 C.F.R. § 2.20 (1979). The guidelines comprise a grid on which "offense characteristics" (designed to measure the severity of an offense) are plotted against "offender characteristics" (designed to measure the likelihood of recidivism) to yield a "customary" range of time that the offender is to serve before being released from prison on parole.*fn2 See Forman I, 709 F.2d at 857. See generally Warren v. United States Parole Commission, 212 App. D.C. 137, 659 F.2d 183, 189-93 (D.C. Cir. 1981), cert. denied, 455 U.S. 950, 71 L. Ed. 2d 665, 102 S. Ct. 1454 (1982) (detailed history of the guidelines). The Commission determined that under the 1979 guidelines, the "customary range" appropriate for Forman was forty to fifty-two months in prison.
Forman petitioned for a writ of habeas corpus in the district court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 2241 (1976), claiming that the application of the 1979 guidelines violated the constitutional proscription against ex post facto laws. The district court agreed and ordered the Commission to afford Forman a new parole hearing to be conducted in accordance with the guidelines in effect at the time of the 1976 sentencing. The Commission complied, and Forman was ultimately released on parole after signing a Certificate reserving to the Commission the right to reincarcerate him should the district court's order be reversed or vacated on appeal, which promptly followed.
The Forman I panel first held that the law in effect at the time of the offense is the relevant law for purposes of ex post facto analysis. Forman I, 709 F.2d at 856-57. See Weaver v. Graham, 450 U.S. 24, 28-31, 101 S. Ct. 960, 964-65, 67 L. Ed. 2d 17 (1981). In order to determine whether the retrospective application of the 1979 guidelines was detrimental to Forman, the panel looked to the 1974 guidelines, those in effect at the time of commission of Forman's offense, stating:
It thus appears that the Commission's application of the 1979 instead of the 1974 guidelines resulted in the establishment of a different "customary" range of incarceration in Forman's case: under the 1979 guidelines, Forman's worst-case prognosis was forty to fifty-two months, as compared with a thirty-six month worst-case presumptive minimum under the 1974 guidelines. Moreover, Forman's best-case prognosis was twenty-four to thirty-six months under the 1979 guidelines but twelve to sixteen months under the 1974 guidelines.
Forman I, 709 F.2d at 859. The panel thus concluded that the retrospective application of the 1979 guidelines was detrimental to Forman. The panel therefore went on to discuss the question whether the guidelines were "laws".
On that issue, following the precepts of Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978) (" Geraghty I "), vacated and remanded on other grounds, 445 U.S. 388, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980), the panel held that, if administered without sufficient flexibility, the guidelines could be considered laws for ex post facto purposes. This position has since been rejected by every other circuit that has addressed the issue.*fn3 However, it remains the law of this circuit until overruled by the in banc court. See Third Circuit Internal Operating Procedures, Chapter VIII C.
In reaching its decision, the panel rejected the proposition that the guidelines could not be laws for ex post facto purposes simply because they are administrative regulations, and not statutes, Forman I, 709 F.2d at 859 (citing Geraghty I, 579 F.2d at 266).*fn4
The panel noted, but rejected, the argument that the guidelines fall within the class of regulations, "possibly excluded" from the ambit of the ex post facto clause, consisting of "no more than general statements of policy, interpretive rules, or rules relating to agency practice or procedure." Forman I, 709 F.2d at 859 n.17 (citing Pickus v. United States Bd. of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1112-14 (D.C. Cir. 1974) (rejecting contention that guidelines are merely statements of general policy and holding their promulgation to be subject to rulemaking provisions of Administrative Procedure Act)). On the contrary, the panel recognized that the guidelines play an important role in the parole process:
"Unbounded discretion probably does not exist in the Commission's decisionmaking; the guidelines provide perimeters that may be overstepped only upon a showing of good cause, see 18 U.S.C. § 4206(c)(1976), and changes in the guidelines appear to shape the exercise of that discretion."
Forman I, 709 F.2d at 861 (footnote omitted).
However, the panel declined to adopt an approach, then advocated by Forman, which looks only to the statutory language and legislative history for enlightenment as to the ex post facto effect of the guidelines. The panel thus rejected the position that simply because all parole decisions must fall within the guidelines or depart from them only upon a showing of "good cause," see 18 U.S.C. § 4206(c), the guidelines affect all parole decisions, the Commission may never ignore them, and therefore they constitute a law for ex post facto purposes. The panel relied instead upon the approach taken in our earlier opinion in Geraghty I, and reaffirmed the reasoning of that opinion, which treated the ex post facto question as essentially one of fact:
Geraghty recognized both that the Parole Commission's "discretion" is severely constricted because the Commission must either follow its guidelines except for good cause or should revise the guidelines when parole decisions outside the regulations become too frequent and that the "channel for discretion'" under the guidelines therefore appeared to be "in actuality an unyielding conduit.". . . . Geraghty held that the manner in which the Commission actually applied its guidelines still constituted a question of fact.
Forman I, 709 F.2d at 862 (footnote omitted).
As refined by Forman I, the inquiry thus became, as we have noted, whether the guidelines in fact are applied with "substantial flexibility." Id. The panel ruled that a Commission practice to accord each inmate individualized treatment would not necessarily be dispositive of the issue, but that the "range and contours of that allegedly individualized treatment," id. at 861, would also be relevant to the determination of whether the guidelines were merely a channel for discretion," or "an unyielding conduit" which constitutes a "law" for ex post facto purposes. The district court was therefore invited to rely on a wide variety of evidence on remand, including ...