Appeal from the United States District Court for the Eastern District of Illinois.
Cummings, Pell, and Stevens, Circuit Judges.
In these eleven cases, consolidated for disposition, the Government appeals from district court orders, each of which concluded by ordering that the respondents provide the petitioner with a parole hearing, in accordance with law. Each of the petitioners was a prisoner confined in the United States Penitentiary at Marion, Illinois. Each had filed a pro se petition seeking to establish a claim for eligibility for parole. All but two of the petitions sought mandamus or, in the alternative, habeas corpus. Two sought only mandamus relief.
The respondents, although varying from case to case, had to do with the custody of the prisoners or with the determination that they were ineligible to be considered for parole. The petitioners named the warden or the chairman of the Board of Parole or, frequently, both. The Director of the Federal Bureau of Prisons was also named as a respondent in two petitions. The captions of most of the petitions contained an "et al." designation, which received no further elaboration. The Government, however, does not claim that any of the petitions is defective for failing to name a party respondent having it in his power to carry out the order of the district court. In any event, inasmuch as the same result is reached on this appeal as to all of the cases, the matter of implementation by such further order as may be necessary can be handled on remand.
Each of the petitioners had been convicted of and sentenced for narcotics offenses prior to May 1, 1971, the effective date of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801, et seq. The Act had repealed the statutes under which petitioners had been convicted. All of the petitioners would have been eligible for parole consideration under 18 U.S.C. § 4202*fn1 if that section was no longer proscribed for those who were convicted under repealed sections 21 U.S.C. §§ 173, 174, and 176, and 26 U.S.C. §§ 4704 and 4705.
Inasmuch as the same question of statutory construction is involved in each of the appeals, which matter has been adequately briefed, pursuant to Rule 2, Fed. R. App. P., we dispense with further briefing and oral argument.
The impact of the repeal effected by 21 U.S.C. § 801, et seq., was before this court in United States v. McGarr, 461 F.2d 1, 4 (7th Cir. 1972), in which this court agreed with the Ninth Circuit "that the availability of probation under 18 U.S.C. § 3651, or, for that matter, parole under 18 U.S.C. § 4202 (both of which were unavailable by reason of 26 U.S.C. § 7237(d)), is not part of the penalty." The present issue, however, was not directly involved in McGarr.*fn2 Subsequent to the issuance of that opinion, the Supreme Court in Bradley v. United States, 410 U.S. 605, 35 L. Ed. 2d 528, 93 S. Ct. 1151 (1973), held that a "prosecution" only terminates when sentence is imposed, and that under the specific saving clause of the Comprehensive Drug Abuse Prevention and Control Act of 1970, section 1103(a), a district court in sentencing one convicted under the repealed acts which were "saved" could not suspend sentence or place the prisoner on probation under 18 U.S.C. § 4208(a).
Mr. Justice Brennan and Mr. Justice White in a concurring opinion expressed the view that 1103(a) forecloses the availability of parole not only under 18 U.S.C. § 4208(a), permitting a court at sentencing to establish the time for parole eligibility, but also under 18 U.S.C. § 4202. The majority of the Court, however, speaking through Mr. Justice Marshall, declined to reach the § 4202 question stating, "whether § 1103(a) or the general saving statute, 1 U.S.C. § 109, limits [the decision of the Board of Parole to grant parole at a time long subsequent to prosecution] is a question we cannot consider in this case." 410 U.S. at 611 n. 6. The majority opinion also stated that the "disposition of this case has no bearing on the power of the Board of Parole to consider parole eligibility for petitioners under 18 U.S.C. § 4202." 410 U.S. at 610 n.5.
Subsequent to Bradley, at least five circuits have addressed themselves to the specific issue raised by the present appeals. No doubt others are being presented with the question. In any event, four of the circuits have decided the question adversely to the position of the Government, which coincides with the view expressed by Justices Brennan and White: United States ex rel. Marrero v. Warden, 483 F.2d 656 (3d Cir. 1973), cert. granted, 414 U.S. 1128, 94 S. Ct. 865, 38 L. Ed. 2d 752; United States v. Marshall, 158 U.S. App. D.C. 283, 485 F.2d 1062 (D.C. Cir. 1973); Alvarado v. McLaughlin, 486 F.2d 541 (4th Cir. 1973); Amaya v. United States Board of Parole, 486 F.2d 940 (5th Cir. 1973). Contra: Perea v. United States Board of Parole, 480 F.2d 608 (10th Cir. 1973).
Not on a numerical basis but because we find the reasoning more persuasive in the four circuits which have decided the § 4202 issue adversely to the Government's position, we adopt the conclusion of those circuits. Perea, which was the first in time of the cases cited above, reaches the opposite result on a rather cursory analysis of the impact of 1 U.S.C. § 109, the Code's general saving clause. We accept, as did the court in Amaya, the analysis by Judge Rosenn in Marrero:
"The only remaining issue is the effect of 1 U.S.C. § 109, which provides in relevant part:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
"This general savings statute was intended to obviate the common law's technical abatement of a prosecution by the repeal of the statute under which it proceeded. Hamm v. Rock Hill, 379 U.S. 306, 314, 13 L. Ed. 2d 300, 85 S. Ct. 384 (1964). Therefore, the statute's purpose would not be furthered by applying it to preclude Marrero's parole eligibility under § 4202. His conviction and sentence will remain intact even if he is paroled. We therefore hold that permanent parole ineligibility is not a 'penalty' incurred under § 7237(d). We read § 7237(d)'s preclusion of parole as a dated legislative judgment as to the manner by which the actual penalty, i.e., the prison sentence, should be effectuated. To read it otherwise would preclude carrying out the apparent congressional judgment, in repealing the parole ban, that the rehabilitative goals of the criminal justice system will be furthered by parole. Moreover, we can find no rational basis that would justify barring parole for persons convicted of crimes committed before the Act's effective date, yet granting it to persons convicted of subsequent crimes. To the ...