Appeals from the United States District Court for the Eastern District of Illinois, Benton Division. Nos. 79-C-2023, 79-C-2015, 79-C-2032, 78-C-2353, 78-C-2038, 79-C-2055, 79-C-2057, 78-C-2339, 78-C-2340, 78-C-2354 and 78-C-2373 -- James L. Foreman, Judge . Appeal from the United States District Court for the Western District of Wisconsin. No. 78-C-526 -- James E. Doyle, Judge . Appeals from the United States District Court for the Eastern District of Illinois, Benton Division. Now. 79-C-2015, 79-C-2032, 78-C-2353, 79-C-2055, 79-C-2038, 78-C-2340, 79-C-2057, 78-C-2339, and 78-C-2354 -- James L. Foreman, Judge .
Before Swygert, Pell and Cudahy, Circuit Judges.
Pursuant to 28 U.S.C. § 2241, twelve petitioner-appellees filed petitions for writs of habeas corpus alleging that their transfers from state to federal prisons because of insufficient state maximum security facilities were invalid under 18 U.S.C. § 5003(a), as construed by Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978) (en banc) ("Lono").*fn1 They sought release from federal custody and return to prisons in their respective states of conviction. Upon recommendation of a magistrate, the District Court for the Southern District of Illinois granted the petitions of the eleven prisoners who, at the time of filing, were incarcerated at the U.S. Penitentiary in Marion, Illinois ("Marion Penitentiary"). The District Court for the Western District of Wisconsin granted the petition of the one petitioner who, at the time of filing, was incarcerated at the Federal Correctional Institution in Oxford, Wisconsin ("Oxford FCI"). Federal and state government respondents and intervenors appealed.
In Lono, we held that section 5003 conditions the authority of federal officials to accept state prisoners into custody on a showing that the prisoners are in need of specialized treatment available only in the federal system. On appeal, the government parties argue that the transfers of these prisoners because of the unavailability of state maximum security facilities qualify as transfers for specialized treatment and that the procedures heretofore employed in making the transfer decisions were sufficient to satisfy petitioners' due process rights. We generally agree with the government parties that there may be instances in which conditions at federal maximum security facilities may constitute specialized treatment; however, because we find that in these particular cases the United States Bureau of Prisons (the "Bureau") and the states gave inadequate consideration to satisfaction of the Lono criteria prior to transfer and because the transfer evaluation procedures did not comport with due process requirements, we affirm.
Following their convictions and incarceration for various offenses in five different states Vermont, Alaska, Hawaii, New Mexico and Delaware the twelve petitioners were transferred from state to federal custody pursuant to contracts between their states of origin and the Bureau as purportedly authorized by 18 U.S.C. § 5003(a).*fn2 All of the petitioners allegedly require for their own benefit and for the benefit of society maximum security incarceration, which for one reason or another is not available in their states of origin.*fn3
In the case of the four petitioners transferred from the state of Vermont, state corrections department hearing officers conducted proceedings prior to the petitioners' transfer to determine if the criteria established by the state's transfer policy were satisfied.*fn4 The terms of this policy do not require a determination whether petitioners are in need of specialized treatment or if such treatment facilities are available in the federal prison system.*fn5 Two of the three petitioners transferred from Hawaii were afforded state-conducted pre-transfer hearings; again, however, these proceedings did not consider the need for specialized treatment.*fn6 The two petitioners from Alaska received pre-transfer meetings or hearings.*fn7 These also did not evaluate the petitioners' need for specialized treatment nor the availability of such treatment facilities in the federal system. Neither one of the two petitioners from Delaware*fn8 nor the petitioner from New Mexico*fn9 received pre-transfer hearings regarding their move from state to federal custody.
The eleven petitioners who were incarcerated at Marion Penitentiary at the time they filed their petitions in the District Court for the Southern District of Illinois received individual hearings before the United States Magistrate.*fn10 The magistrate consolidated the cases for purposes of his Report and Recommendation. Since the magistrate found that the requirement of Lono, that a showing of need for specialized treatment must be made prior to transfer of prisoners from state to federal custody, had not been satisfied, he recommended that their petitions be granted. See McKay v. Wilkinson, No. CV 79-2038 (S.D.Ill., Magistrate Meyers, Sept. 28, 1979). The District Court for the Southern District of Illinois (Foreman, J.) adopted the magistrate's recommendation and required that the Marion petitioners be returned to their respective state correctional systems within thirty days. See McKay v. Wilkinson, No. CV 79-2038 (S.D.Ill. Nov. 2, 1979). Both the magistrate and the district court expressed their disapproval of the Lono decision, which, they conceded, controls the instant petitions and requires that they be granted. The district court stayed its order pending appeal.
At the time of filing his petition, petitioner Lawrence was confined at Oxford FCI. He brought his petition in the District Court for the Western District of Wisconsin, where, on the authority of Lono, Judge Doyle granted it without an evidentiary hearing.*fn11 The court's order required that petitioner Lawrence be returned to Vermont correctional facilities within thirty days. See Lawrence v. Elsea, 478 F. Supp. 480 (W.D.Wis.1979). The district court denied the state intervenor's motion to stay the order, but on appeal, we granted the motion to stay.
Our decision in Lono forms the primary basis for petitioners' claim for relief. Essentially, petitioners argue that since they did not receive a pre-transfer hearing on their need for specialized treatment and on the possibility of satisfaction of that need in the federal system, their transfers were illegal. In opposition, the federal and state respondents and intervenors take several alternative positions regarding the force of the Lono decision. They argue first that this panel should overrule the court's en banc decision in Lono rendered only a little more than two years ago, and second, that the instant cases are distinguishable from Lono.
In Lono, the petitioner, convicted of murder and armed robbery, was incarcerated in Hawaiian state facilities. In 1967, he was transferred to the U.S. Penitentiary, Leavenworth, Kansas, pursuant to a federal-state contract purportedly authorized by 18 U.S.C. § 5003. Two years later, he was transferred to Marion Penitentiary. Pursuant to 28 U.S.C. § 2241, Lono filed a petition for habeas corpus in the District Court for the Eastern District of Illinois. The parties stipulated that Lono had never received any hearing on, or a statement of reasons for, his transfer from the state to the federal prison system. Lono contended that because of his transfer to federal prisons in the continental United States he had been unable to see any of his friends or family for over ten years and that he had been unable to communicate with counsel familiar with Hawaiian law so that he could petition for resentencing under the 1972 amendments to Hawaii's Penal Code. Moreover, he was unable to formulate such a petition on his own because the necessary Hawaiian legal materials were unavailable at Marion Penitentiary.
In setting aside the decision of a three-judge panel of this court, we en banc held that 18 U.S.C. § 5003 requires a showing of a state prisoner's need for specialized treatment as a condition precedent to transfer to the federal prison system. To reach this result, we relied upon terminology unique to § 5003, which authorizes the Attorney General to contract for such transfers "when the Director (of the Federal Bureau of Prisons) shall certify that proper and adequate treatment facilities and personnel are available...." 581 F.2d at 647 (emphasis supplied). We also relied upon the section's legislative history which we said "makes it clear that the statute is not ambiguous and that the word "treatment' is advisedly used." Id.
Since we issued our decision in Lono, two Courts of Appeals as well as several district courts have rejected its conclusion.*fn12 However, no matter how many other courts may have reached a conclusion contrary to our own, absent Supreme Court pronouncement to the contrary or legislative revision,*fn13 a panel of this court is bound by a prior (and recent) decision of the court reached en banc. Ewing v. Williams, 596 F.2d 391, 397 (9th Cir. 1979); United States v. Poolaw, 588 F.2d 103, 105 (5th Cir.), cert. denied, 440 U.S. 966, 99 S. Ct. 1517, 59 L. Ed. 2d 782 (1979); Brown v. United States, 508 F.2d 618, 625 (3d Cir. 1974), cert. denied, 422 U.S. 1027, 95 S. Ct. 2621, 45 L. Ed. 2d 684 (1975). See also United States v. Lewis, 475 F.2d 571, 574 (5th Cir. 1972). En banc consideration is required to overrule such a decision. See generally Fed. R. App. P. 35. Hence, for purposes of decision by this panel, Lono states the applicable law, and we must reject respondents' argument that it should be overruled. Appropriate principles of stare decisis make it quite undesirable for us to reconsider here the legal propositions announced in Lono.*fn14
In any event, the federal and state respondents and intervenors contend that Lono is distinguishable from the case presented by the instant petitioners. In Lono, the parties agreed that the petitioner had never received any hearing on, or a statement of reasons for, his transfer from the state to the federal prison system. The governmental respondents and intervenors argue that the record in the instant case, unlike that in Lono, clearly discloses the reasons for petitioners' transfers into federal custody. They state that the record reflects that each petitioner had been convicted of a serious crime or crimes and that each requires a high level of prison security, which for one reason or another is unavailable in the state systems. In response, petitioners argue that it is precisely because the record reveals that the transfers were for security and related reasons, that they are invalid. Such purposes of transfer, petitioners argue, do not qualify as "specialized treatment." Respondents and intervenors disagree, averring that federal maximum security institutions are "specialized treatment" facilities within the meaning of Lono, that petitioners' placement therein was for "specialized treatment," and that the procedures which accompanied petitioners' transfers were sufficient to guarantee their due process rights. Although we cannot accept the government's contentions regarding the sufficiency of the process afforded these petitioners, we generally agree that the fact that the transfers in the instant cases were for security and related reasons may qualify these transfers as responsive to a need for "specialized treatment" as required by Lono, construing 18 U.S.C. § 5003(a).
In the instant case, the magistrate found with respect to the nature of the conditions under which most of the instant petitioners were incarcerated in their respective state systems that:
The Respondents maintain that in situations where a state prisoner becomes unmanageable the state institutions are not able to properly care for them. Such situations arise when the state inmate is extremely hostile (i. e. assaults or murders other inmates) or prone to escape. Since the state correctional systems involved in the case at hand (Delaware, Hawaii, Alaska, Vermont, and New Mexico each relatively small in total population, incarcerating an equally relative small number of the type of inmates in issue) do not have the facilities to properly prevent such activity, they are constrained to either shackle the inmate or confine the inmate ...