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In an upcoming bout between the Parole Commission and the United States Constitution, bet on due process of law to win by knockout in less than 6 rounds.  The first round is the local parole panel review, the second round is the regional office review, the third round is the national office review, the fourth round is the federal district court review under habeas corpus, and the fifth and probably final round (if the federal district judge denies relief) is the federal circuit court review on appeal.  Rare cases can reach a sixth and final round of review by the Supreme Court.  It is most likely that the upcoming bout will go five rounds.

The Parole Commission has lived long and its budget has prospered through various federal administrations over the many years of its existence.  However, to the extent that the continued employment of parole examiners is only justified by leftover cases of prisoners qualified for mandatory 30-year release dates under 18 USC 4206(d), then the agency must close its doors to holding such administrative reviews because this statute as applied presently violates the United States Constitution.

Those cases must receive judicial review rather than administrative review conducted by employees of the Parole Commission in order to pass constitutional muster.  The statute as applied breaches the fundamental constitutional promises of due process and equal protection of the law.  The constitutional argument is further explained below.

Fundamental constitutional guarantees of due process, both substantive and procedural, and equal protection of the law, shall always require that all prisoners with a vested liberty interest in a statutory mandatory date of release (the “MR date”) must be accorded the same process of law that is due under the circumstances.

“Dangerous sexual offenders” (aka “sexual predators”), under 18 USC 4248, are entitled to an evidentiary hearing before a district court on the issue of recidivism whenever the government objects to their mandatory release dates based on a submitted “high probability” of recidivism.  A district court judge must find “clear and convincing” evidence showing a “high probability” of a repeat sex offense upon release before an extension of the Judgment and Commitment Order (the “J&C”) can be issued to impose continued commitment beyond the sex offender’s mandatory release date.

Presently, all of the other federal prisoners entitled to a mandatory release date after service of 30 years of their lives in prison are being given administrative hearings before parole examiners where the prediction of recidivism is made by a finding of a preponderance of the evidence. A mere preponderance finding by parole agents cannot trump a mandatory 30-year release date.

An Article III Judge must make the prediction of recidivism whenever the crucial forecast is the only statutory obstacle to liberty because the prisoner can show 30 years of satisfactory prison conduct.  Thirty years of good prison conduct should be treated by any reviewing court as a criminological predictor of a low probability of a parolee returning to crime in his or her older age.

Research conducted for a man who has served nearly 30 years of a century-long sentence supports the argument that he has a vested liberty interest under 18 USC 4206(d) upon completion of 30 years of his life served in prison.  In fact, all of the qualified prisoners should preserve a due process/equal protection challenge to the parole agency’s administrative review where agency employees use a mere preponderance of the evidence to predict future recidivism and deny the mandatory 30-year release date promised under 18 USC 4206(d).  In an abundance of caution, parole applications should be submitted as soon as possible because 4206(d) is presently set for repeal next year on 11/1/11 (although further extensions of the repeal date are possible).

In cases where dangerous sexual predators have reached their mandatory release date, 18 USC 4248 provides that the government must apply with a district court to seek extension of the commitment order beyond a mandatory prison release date.  A district court judge must then hold a public evidentiary hearing and make a finding based on “clear and convincing evidence” (i.e., a “high probability”) that the sexual predator still poses a risk of harm to others if continued commitment is to be ordered. The analogy to assist the constitutional analysis of 18 USC 4206(d) “as applied” should be clear.

18 USC 4206(d) vests a liberty interest upon service of 30 years given the mandatory language (“shall”) of the prison release statute.  It is not a matter of mere eligibility at the end of 30 years, the statute clearly vests prisoners serving parolable terms with a mandatory 30-year release date.  There are only two exceptions that can trump the release date as discussed below.

Many elderly prisoners today have been in prison for more than 25 years and often more than the 30-year date vested under the unambiguous language of 18 USC 4206(d).  In order to overcome the 30-year mandatory release date, the government can only rely upon two exceptions – (1) poor institutional progress/adjustment and/or (2) the likelihood of recidivism upon release.

For parole agency employees to predict recidivism for a prisoner who has served 30 years in prison arguably amounts to a “crystal ball” prediction without the protections of procedural due process. The constitutional argument is that the liberty interest guaranteed by 4206(d) cannot be overcome by a mere preponderance of the evidence finding made by parole examiners. These mandatory 30-year release date cases, where prisoners have a clear vested liberty interest under 4206(d), should be entitled, at a minimum, to no less than the same judicial process accorded to dangerous sexual offenders.

Prisoners entitled to release under 4206(d) after 30 years should only be denied their liberty if (1) the government formally opposes release and (2) a district court finds “clear and convincing evidence” of either unsatisfactory prison conduct as an indicator and/or a high probability of recidivism.  That is the procedural due process accorded under 18 USC 4248 to a sexual predator before commitment beyond a mandatory release date can be ordered.  The Constitution guarantees all offenders equal protection of the law, and all must be accorded the protection of the process that is due under similar circumstances.

The due process/equal protection challenge to 4206(d) “as applied” would uproot the Parole Commission and discontinue the agency’s administrative review of all mandatory 30-year release date cases.  The agency’s employees cannot be empowered to keep a human being locked up beyond the mandatory 30-year date on a mere preponderance of the evidence of likely recidivism. Only a district court judge can make the initial prediction of the likelihood or unlikelihood of recidivism in these cases because the reflection inside “the crystal ball” must be “clear and convincing” rather than a murky non-judicial preponderance finding made by parole agency employees.

Only an Article III Judge can render an informed decision after a full evidentiary hearing.  The burden of proof belongs to the government if it opposes release. The government must show a high probability of recidivism by clear and convincing evidence. Because that is what the law requires before a prediction of recidivism can be made in sex predator cases to deny a mandatory release date, all other offenders with a mandatory release date must be accorded no lesser protection where a similar prediction of recidivism is the only obstacle to freedom erected by the government.

There are only a few old-law stragglers still in the prison system who fall under 4206(d)’s Congressional promise of a 30-year mandatory release date so the judicial relief requested would neither open the floodgates nor cause any prejudice to the parties. The prediction of recidivism is often the only hurdle to be overcome in 4206(d) cases. Therefore, if the constitutional promise of due process and equal protection of law still has any vitality, then all prisoners with a mandatory release date, not just sexual predators, must be accorded the same right to an informed judicial finding after a plenary evidentiary hearing in district court.

The fight between the Parole Commission and the United States Constitution will end by knockout in less than six rounds. Betting against due process and equal protection of law is “a sucker’s bet.”

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  1. Thanks for the great tip, I look forward to reading more of your blog.

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