CCE Submits Amicus Brief On Parole System to D.C. Circuit

CCE’s Criminal Justice Committee, chaired by Cliff Keenan, assembled on short notice a Parole Working Group consisting of interested CCE Board Directors and others to study a concern articulated by a number of judges, lawyers, and professionals who were involved with the sentencing of Superior Court prisoners convicted of felonies back in the decade before the 1997 Revitalization Act.  The Revitalization Act, among other things, eliminated the local Parole Board and transferred parole authority to the US Parole Commission  (USPC).  The concern expressed was that prisoners sentenced in the decade prior to the Revitalization Act were still in prison, apparently long past what participants in the sentencing -- judges, prosecutors, and defense attorneys – assumed would have been paroled under local 1987 parole guidelines that the USPC should have considered in exercising its parole discretion. 

Prior to the Revitalization Act, D.C. used a sentencing scheme whereby judges imposed a sentencing range of years, the “bottom” number being up to one-third the “top” number, and a defendant was eligible for parole (and presumptively would be paroled) once the “bottom” number was served if the prisoner had complied with Bureau of Prisons requirements during service of his sentence. The Working Group understood from their own personal experience and from others that sentences were crafted with the expectation that the “punishment” aspect of the sentence would be satisfied upon completion of the “bottom” term imposed (absent circumstances, e.g., egregious misconduct in the institution, which the paroling authority appropriately could take into account regarding release).   

At about the time of the Working Group’s first meetings, they learned of a DC Circuit decision issued on July 14, 2015, in Ari Bailey v. Isaac Fulwood, Chairman of the U.S. Parole Commission, et al., No 13-5177, that was adverse to the appellant and involved issues directly related to the concerns that had been expressed to the Group about the USPC not honoring the intent of the local sentencing judges with respect to the presumptive release date of prisoners who were sentenced between 1987 and 1997.  A Kellogg Huber attorney, Matthew Seligman, appointed by the court in Bailey to represent the appellant, met with the Working Group and discussed the appellate issues and his intent to file a petition for rehearing en banc that would request the Circuit to take into account the actual D.C. Board of Parole practices at the relevant time.  Mr. Seligman requested that CCE file an amicus brief.  After deliberation and consultation within CCE’s leadership, the Working Group agreed to do so. 

John Longstreth and Carol Bruce of K&L Gates drafted the amicus brief, which does not comment on the merits of the individual cases, but solely focuses on what system practitioners at the time understood to be the presumptive period of time that would be served for an indeterminate sentence, and how the DC Board of Parole used its discretion in applying its guidelines.  CCE’s Parole Working Group believed that providing the court with a statement from judges, former federal prosecutors, and defense attorneys who practiced in Superior Court during the relevant time period would be invaluable in helping the Court better understand how the USPC’s application of the guidelines differs from what actually occurred under the DC Board of Parole, and the disparate impact it is having on DC prisoners in particular.

CCE submitted its brief on September 2, and within two days was gratified to receive an Order from the DC Circuit that directed the government to “file a response to the petition and lodged brief of amicus curiae.” (emphasis added.)  As you may know, a petition cannot be granted unless the government is asked to respond and we are told that it is an unusual and positive step for this Order to expressly direct a response to CCE’s brief.  The government thereafter opposed CCE’s motion to file an amicus brief and also opposed a similar amicus motion filed by the Washington Lawyers Committee after ours was filed. But, as per the Court Order and a subsequent Order issued by the Circuit, the government must respond to CCE’s lodged brief.  The government has until October 5 to respond to the Appellant’s petition and the amicus briefs.