Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
Under District of Columbia law, offenders convicted of violations of local law may be assigned by the Attorney General to serve their sentences either in federal facilities or in facilities maintained by the District of Columbia. D.C.CODE ANN. § 24-425 (1981). In 1976, Congress enacted sweeping reforms of the federal parole system. Parole Commission and Reorganization Act, Pub.L. No. 94-233, 90 Stat. 219 (1976). That same year the Federal Bureau of Prisons entered a consent decree in a case involving alleged discrimination in parole standards against female prisoners in federal and local prison facilities, Garnes v. Taylor, Civ.No. 159-72 (D.D.C. Dec. 10, 1976). That decree stipulated that all female offenders sentenced in the District of Columbia should be paroled under local, rather than federal, standards, regardless of the site of incarceration or the type of offense, be it D.C. or U.S. Code. On the basis of these two events, male D.C.Code offenders assigned to federal prisons
The district court granted the government's motion for summary judgment. On the statutory question, it held that the District of Columbia statutory scheme assigns federal authorities plenary authority over D.C.Code offenders placed in federal custody. On the equal protection question, it found that the record did not support the plaintiff's allegations that offenders assigned to federal authorities received harsher parole treatment than offenders remaining with District of Columbia authorities. This holding disposed of the sex discrimination claim. The court went on, however, to hold that, even if a difference existed, the government could apply different parole standards to inmates charged under the same Code offense but incarcerated in different facilities. We reverse.
We must first address a threshold jurisdictional problem pressed by the United States.
The district court indisputably had jurisdiction of this case as an action arising under the laws and Constitution of the United States. 28 U.S.C. § 1331 (Supp. IV 1980). The United States contends, however, that the plaintiffs did not timely file their notice of appeal, and that we therefore lack jurisdiction over this case. There is no dispute that the federal rules allow sixty days to notice an appeal when the United States is a party, Fed.R.App.P. 4(a), and that this requirement is jurisdictional, e.g., Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). The district court granted the government's motion for summary judgment on March 31, 1981, Record (R.) 40, and the plaintiffs' appeal was noticed on August 7, 1981, R. 46 — a time lapse which, had it not been for other events, quite clearly would have deprived this court of jurisdiction of this appeal.
On April 10, 1981, however, the plaintiffs had filed another motion, which was not denied until June 10, 1981, R. 45. The plaintiffs' appeal, filed within sixty days, was therefore timely if the April 10 motion tolled the time for appeal. The April 10 motion was styled as a motion for clarification under FED.R.CIV.P. 60(b), which does not toll the time for appeal. Pleadings, however, are to be construed so as to do "substantial justice," see FED.R.CIV.P. 8(f), and the plaintiffs' motion here can fairly be read as a motion to alter or amend the judgment under FED.R.CIV.P. 59(e), which does toll the time for appeal. See Dove v. Codesco, 569 F.2d 807 (4th Cir.1978); Sea Ranch Ass'n v. California Coastal Zone Conservation Commissions, 537 F.2d 1058 (9th Cir.1976); 7 J. MOORE, FEDERAL PRACTICE ¶ 60.29 n. 4 & Supp. (1979). We hold that the plaintiffs' motion was timely under Rule 59(e). It sought both "clarification and certification" — clarification that the judgment had resolved only one portion of the case
A. The District Court's Decision
There were three crucial steps in the district court's decision. First, the court held that under the relevant sections of the District of Columbia Code, federal authorities were ceded full authority to treat D.C.Code offenders as they treat federal offenders. Second, the court found that District of Columbia and federal standards for parole were the same. As a result, the court concluded, no equal protection difficulties, whether they be between male and female D.C.Code offenders or between male D.C. Code offenders in federal and local prison facilities, were posed by the treatment of D.C.Code offenders according to federal guidelines. We find that none of these decisions properly could be reached at the stage of summary judgment. We reverse so that there may be an amplification of the record, which will allow the district court to determine, and, if necessary, this court to review, the questions raised by this case.
1. The Scope of Federal Authority Over D.C.Code Offenders
The statutory framework for the treatment of prisoners in the District of Columbia was established in the 1930's and has not been revised significantly since. Its antiquity is particularly telling because of important, intervening legal changes: the grant of limited home rule to the District of Columbia in 1973, District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973), and the reorganization of the federal parole system in 1976. Difficulties in understanding what the original statutory scheme intended are therefore complicated by the need to accommodate what has come between.
Before the 1930's, decisions about parole for D.C.Code offenders were handled exclusively by federal authorities. The District of Columbia has operated under a bifurcated parole system since 1932, when Congress created the "Board of Indeterminate Sentence and Parole" for the District of Columbia, Act of July 15, 1932, ch. 492, 47 Stat. 696 ("1932 Act").
But there were anomalies. In 1932, the federal parole statute did not include provision for parole of offenders given indeterminate sentences, as many D.C.Code offenders were under the new statute. Moreover, the federal parole statute authorized release only after an inmate had served a minimum of one-third of his sentence, Act of Jan. 23, 1913, ch. 9, 37 Stat. 650, whereas the D.C. Board was permitted to parole an offender who had served as little as one-fifth of his sentence. Prisoners assigned by the Attorney General to federal facilities continued to be subject to federal parole authorities, and thus eligible for parole in some cases considerably later than inmates assigned to District of Columbia facilities. An equal protection challenge to the latter disparity was rejected, Aderhold v. Lee, 68 F.2d 824 (5th Cir.1934), but probably triggered an important amendment to the 1932 Act, see Bracey v. Hill, 11 F.Supp. 148, 149 (M.D.Pa.), aff'd, 77 F.2d 970 (3d Cir.1935). The amendment reads in pertinent part:
Act of June 5, 1934, ch. 391, 48 Stat. 880 (codified at D.C.CODE ANN. § 24-209 (1981)).
This 1934 amendment, section 24-209, is the statutory provision at the heart of the dispute here. The government contends that the amendment plainly grants federal authorities plenary power over D.C. offenders in federal custody. The plaintiffs argue that the 1934 amendment just as plainly constrains federal authorities to apply District of Columbia parole standards to District of Columbia offenders.
Problems in interpreting section 24-209 remained dormant for an extended period, however, because District of Columbia and federal parole practices were virtually identical. In 1940, the District of Columbia parole statute was amended to set eligibility for parole after service of a minimum of one-third of the maximum sentence, thus bringing methods for calculating parole eligibility for D.C.Code offenders nearly into line with those for federal offenders, Act of June 6, 1940, ch. 254, 54 Stat. 242. The only remaining difference was that federal offenders serving a life sentence were eligible for parole after ten years, whereas District of Columbia offenders became eligible only after fifteen years, a difference that remains today. Compare 18 U.S.C. § 4205(a) (1976) with D.C.CODE ANN. § 24-203 (1981).
With the 1976 revisions of the statutory scheme for parole of federal offenders, however, the question of the interpretation of section 24-209 assumed renewed urgency. In 1976, the former United States Parole Board was replaced by a Parole Commission, which was geographically divided in an effort to bring parole decisions closer to inmates and the areas in which they are imprisoned.
The scope of the authority conveyed by section 24-209 has thus remained largely unexplored in the courts. It is settled that under section 209, federal authorities may make parole decisions about D.C.Code offenders committed to them, Beard v. Bennett, 72 U.S.App.D.C. 269, 114 F.2d 578 (1940); Story v. Rives, 68 U.S.App.D.C. 325, 97 F.2d 182, 184, cert. denied, 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377 (1938). Whether these decisions are to be made according to federal or District of Columbia standards for parole suitability, however, has never been finally decided.
The legislative history of the 1932 Act and the 1934 amendment, although inconclusive, points toward the interpretation urged by the plaintiffs. The 1932 Act introduced the "modern" penological practice of indeterminate sentencing to the District of Columbia, and sought to relieve federal authorities of the burden of supervising D.C.Code offenders.
Congress therefore enacted the 1934 amendment, to ensure that the benefits of penological reform which had been provided for D.C.Code offenders did not vanish when the offenders were committed to federal custody. That the 1932 Act adopted a penal philosophy for the District,
Judicial glosses on section 24-209 are similarly inconclusive. At the outset, section 24-209 was read as a limited effort to correct the anomaly that federal authorities could not parole D.C.Code offenders given indeterminate sentences, e.g., Story v.
Later cases do not take a clear position on the interpretation of section 24-209. It is settled that Congress may, with good reason, enact different rules to govern District of Columbia and federal offenders. Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949). Four categories of offenders are in fact relevant here:
The precise category at issue here, D.C.Code offenders in federal custody, has not been squarely considered, however, and decisions concerning other categories have admonished that a conclusion for one category should not be extrapolated to another category.
In Gilstrap v. Clemmer, 284 F.2d 804 (4th Cir.1960), a D.C. offender in D.C. custody claimed that he should be subjected to the more lenient federal method of computing good time deductions, by virtue of the fact that D.C.Code offenses are regarded as offenses against the United States. The court rejected his argument, because it determined that in the case of D.C.Code offenders in D.C. facilities, Congress had exercised its power to create separate, more stringent good conduct standards than those it had created for federal offenders. The Fourth Circuit also inferred that D.C. Code offenders in federal custody should, by parity of reasoning, be treated according to D.C. standards, 284 F.2d at 808-09.
In Howerton v. Rivers, 117 U.S.App.D.C. 110, 326 F.2d 653 (1963), this court confronted the category of federal offenders in D.C. custody, and held that the 1932 Act had transferred all parole power over prisoners in D.C. custody to D.C. officials — whether the prisoners were D.C.Code or federal offenders. The court distinguished Gilstrap:
326 F.2d at 655. In thus distinguishing Gilstrap, the court reiterated the basic problem of this case: Congress may provide differently for any of the four categories of offenders, provided it has good reason for so doing. The reiteration of the problem, however, does not solve it for us. There is no reason to assume that Congress intended the same rationale to be applied to D.C. Code offenders in federal custody that it applies to federal offenders in D.C. custody.
Several recent equal protection challenges to the treatment of D.C. offenders apparently have relied on differing assumptions about whether section 24-209 assigns federal authorities the power to treat D.C. Code offenders by federal parole standards. Because the District has no facilities for long-term incarceration of women, all female D.C.Code offenders serving more than
There has been one equal protection challenge to the assignment of male D.C.Code offenders to federal custody in the wake of the 1976 parole reforms that has resulted in a written opinion. The challenge was rejected, but not on the basis that section 24-209 assigns federal authorities the power to treat D.C.Code offenders by federal standards. In Gates v. United States Parole Commission, Civ. No. 77-136 (M.D.Pa. 1977), reprinted in Pl.App. 144, the court held that the new federal standards are substantially similar to the Board's own parole practices, and therefore no equal protection question was posed. In addition, the court pointed out that section 24-209 probably requires the federal authorities to apply D.C. parole standards in any event:
Courts thus have reached no clear consensus about the scope of the authority conferred by section 24-209.
We do not believe it proper, however, to resolve the issue of the interpretation of section 24-209 at this stage of the case. Because the district court granted summary judgment, the record is woefully inadequate even on the crucial preliminary issue of whether the new federal parole standards as applied differ significantly from the standards employed by the D.C. Board.
2. The Federal and District of Columbia Standards for Parole Suitability
The district court also asserted that it was settled that the new federal and the District of Columbia standards for parole suitability are the same. Pl. App. 76. In reaching the conclusion, the court relied squarely on a decision by a district court in Pennsylvania, Gates v. United States Parole Commission, Civ.No. 77-136 (M.D.Pa.1977), reprinted in Pl.App. 144. Gates is not authority that we are bound to follow, and we find that the conclusion that the two standards are the same was prematurely reached.
First, we note that the standards as set out in the current statutes are not the same. Ever since the passage of the 1932 Act, the District of Columbia Parole Board has been authorized to grant parole to D.C. prisoners who have served their minimum sentence and observed the rules of the facilities in which they are incarcerated, upon finding that they appear likely to "live and remain at liberty without violating the law," and that their release will not be "incompatible with the welfare of society," 1932 Act § 4, D.C. CODE ANN. § 24-204(a) (1981). This was the federal statutory standard until the 1976 revision of the federal parole system. The new federal statutory standard, which accepted guidelines that had been employed on an experimental basis for several years before, provides for release:
18 U.S.C. § 4206(a) (1976).
The new standard, moreover, was introduced in the course of congressional consideration of the 1976 Parole Commission and Reorganization Act. The original Senate version of the Act had preserved the earlier standard.
The new federal standards are implemented by guidelines promulgated by the Commission. The guidelines assign a "salient factor score" to an inmate, based on personal characteristics such as pre-offense employment history, and rate his crime on an "offense severity scale." Parole recommendations are then based on an intersection of the two ratings, 28 C.F.R. § 2.20 (1981); see Warren v. United States Parole Commission, 659 F.2d 183, 191-92 (D.C.Cir.1981). The District of Columbia Board does not employ similar guidelines in making parole decisions.
Despite these apparent differences, it remains possible that the Commission and the Board in practice employ parole criteria that are substantially the same. The plaintiffs allege that they do not, and that as a group D.C.Code offenders in federal custody receive parole markedly later than D.C. Code offenders in the custody of the District of Columbia. Whether there are differences between the practice of the Commission and the practice of the Board was thus a crucial question of fact at issue, and not capable of resolution on a motion for summary judgment.
3. Equal Protection
It is at this stage that the district court's treatment of the two equal protection
B. The Task of the District Court on Remand
We therefore reverse the district court's grant of summary judgment for the United States and remand this case for further proceedings, should the parties wish to continue. We note that because of the premature initial decision, much of this case remains unresolved. The district court did not rule on the plaintiffs' motion for class certification or on their motion to amend their complaint.
Moreover, the record did not explore crucial factual issues. The important threshold question of whether the federal and the District of Columbia parole suitability standards are in fact different cannot be resolved from the present record. Nor does the record yet permit resolution of the difficult question of what, if any, legitimate governmental interests would be served by the application of federal parole standards to D.C.Code offenders in federal custody as opposed to women offenders or D.C.Code offenders in local custody. The parties must be given the opportunity to probe these, and perhaps other, questions pertinent to final determination of the scope of federal parole authority over D.C.Code offenders in federal custody.
The legal questions potentially posed by this case are complicated. Plaintiffs seek to procure a determination of fundamental constitutional rights. Before any of these questions can be faced or resolved, there must be a factual underlay not now present. We therefore reverse and remand.
BORK, Circuit Judge, concurring in part and dissenting in part:
The majority holds that we have jurisdiction to hear this appeal, that appellants' ex post facto clause challenge is meritless, and that the record as it now stands is inadequate to decide either the statutory or equal protection issues. Accordingly, the majority remands the case to the district court for additional evidence. I agree with the first two holdings.
THE STATUTORY CLAIM
Appellants claim that D.C.Code § 24-209 (1981) forbids the disparate treatment of D.C. offenders on the basis of their place of incarceration — D.C. prisons or federal prisons. The majority declines to answer the question, remanding instead for a determination whether there is in fact disparate treatment. In my view, a trial is wholly unnecessary since the various sources for determining legislative intent — the language of the statute, its legislative history, its historical background, and its construction by the agency entrusted with its enforcement, see Howe v. Smith, 452 U.S. 473, 480-87, 101 S.Ct. 2468, 2473-77, 69 L.Ed.2d 171 (1981) — make clear that section 24-209 was not intended to prohibit the challenged disparate treatment.
Of the relevant sources for determining legislative intent, none supports appellants. The language of the provision, as the majority observes, excludes neither appellants' nor appellees' interpretation. The United States Parole Commission and the Attorney General are charged with enforcing section 24-209 in cases such as this; appellants have shown nothing to suggest that they have not consistently read the provision to permit application of federal parole standards to District offenders in federal prisons.
Until the very end of the nineteenth century, no federal prisons existed, and federal prisoners were housed in state facilities. See Howe v. Smith, 452 U.S. at 483, 101 S.Ct. at 2475. The Supreme Court endorsed this practice. Ex parte Karstendick, 93 U.S. 396, 400, 23 L.Ed. 889 (1876).
Initially, federal courts were empowered by Congress to assign federal prisoners to individual prisons. Federal courts could sentence federal prisoners to any willing state prison in the state of conviction, inside or outside the district in which the court sat. Act of Mar. 3, 1825, ch. 65, § 15, 4
States that received federal prisoners were authorized by Congress to confine them for exactly the length of their sentence. In particular, state prison officials had no power, absent specific Congressional authorization, to release federal prisoners before the expiration of their term. See McNutt v. Bland, 43 U.S. at 8-10, 2 How. at 16-18. Otherwise, state officials had broad authority over federal prisoners. Indeed, federal law provided that
Act of June 30, 1834, ch. 163, 4 Stat. 739. See Mackin v. United States, 117 U.S. 348, 352, 6 S.Ct. 777, 779, 29 L.Ed. 909 (1886) (discussing 1834 Act); Ex parte Karstendick, 93 U.S. at 398, 399 (same).
By the end of the nineteenth century, most federal prisoners were concentrated in a few state prisons. Many states had found their prisons overcrowded with federal prisoners; some states had stopped accepting federal prisoners not convicted in their own state; and one state had refused to accept any federal prisoners at all. H.R.Rep. No. 1341, 61st Cong., 2d Sess. 7 (1910). In 1891, Congress authorized the construction of the first federal penitentiaries, Act of Mar. 3, 1891, ch. 529, 26 Stat. 839, and construction of Leavenworth prison began in 1896. H.R. Rep. No. 1341, supra, at 5, 6, 7.
Penal reform in the late nineteenth century encompassed the birth of parole, "a means of restoring offenders who are good social risks to society ... under guidance and control" of a parole board. Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S.Ct. 872, 874,
Informal methods of parole had existed since the New York House of Refuge had adopted an indenture system for juvenile delinquents in 1825. 4 Attorney General's Survey at 7. For adult offenders, the first modern attempt to institute a large-scale parole system began in 1876 at New York's Elmira Reformatory. Id. at 19. See The President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 60, 185 (1967). Only one year later, the New York legislature adopted the first American parole statute. 1877 N.Y.Laws, ch. 173, § 5. By 1910, thirty-one other states had also adopted parole laws, 4 Attorney General's Survey at 20, and Congress had adopted the first federal parole law, Act of June 25, 1910, ch. 387, 36 Stat. 819. 1 Attorney General's Survey at 15-16, 786.
Congress enacted the 1910 Federal Parole Act with two goals in mind, one penological, one fiscal. Believing that parole had "come to be recognized as humane, in the interest of sound policy and highly beneficial to the welfare of society," Congress intended federal prison officials to be able to reward rehabilitated prisoners as well as to maintain prison discipline through the incentive of an early release. H.R.Rep. No. 1341, supra, at 4. See id. at 4-5 (reprinting portions of 1898 American Bar Association report on parole). This policy was considered particularly appropriate for federal prisons because of the smaller number of prisoners who had committed serious offenses. Id. at 5 ("About 33 per cent of the prisoners in state penitentiaries are there for the commission of the smaller offenses, while about 57 percent of the prisoners in federal penitentiaries are there for the smaller offenses."). The second, fiscal purpose was to ease overcrowding in the three federal prisons, which were still only partially completed but which would remain overcrowded on completion as they received federal prisoners currently confined in state institutions.
To accomplish its goals in the existing system, the 1910 Act created separate parole systems for federal prisoners confined in federal and state institutions. Section 1 made every federal prisoner confined in a federal prison under a determinate sentence eligible for parole after having served one-third of his total term of incarceration. 1 Attorney General's Survey at 16. Section 2 created a separate parole board for each of the three federal prisons, and section 3 granted the boards the power to grant or revoke parole, subject to the approval of the Attorney General. 1 Attorney General's Survey at 16. Section 3 required the parole boards, in making parole decisions, to consider (1) whether "there is a reasonable probability" that the prisoner "will live and remain at liberty without violating the laws" and (2) whether "release is not incompatible with the welfare of society." 36 Stat. 819. Application of these nebulous standards by three separate federal parole boards undoubtedly led to disparate courses of decision in the three federal prisons. The Act left each parole board free to decide whether to release federal prisoners and what conditions of parole to prescribe. "The Board, under the law, establishes its own rules and regulations governing procedure, subject, of course, to the approval of the Attorney General," and aside from the two factors the Act required these boards to consider, "[a]ll other rules governing the condition of parole are left to the discretion
By contrast, the Act left federal prisoners confined in state prisons subject to state parole laws. Section 9 made such federal prisoners "eligible to parole on the same terms and conditions and by the same authority and subject to recommittal for violation of such parole in the same manner" as state prisoners. 36 Stat. 821; see H.R. Rep. No. 1341, supra, at 3; White, supra, 12 A.B.A.J. at 52. Section 9 explicitly adopted the state law for each federal prisoner confined in a state prison or reformatory. The only qualification was that all paroles for such prisoners were subject to the approval of the Attorney General. H.R.Rep. No. 1341, supra, at 3; White, supra, 12 A.B.A.J. at 52.
It is against this background of federal prison practices that District of Columbia law and practices must be understood. Until 1932, District of Columbia prisoners were subject to the jurisdiction of the federal parole system, and "the history of parole in the District of Columbia prior to 1932 is substantially that of the federal parole system." 1 Attorney General's Survey at 232 (footnote omitted). In particular, District prisoners confined in the District penal and reformatory institutions were considered for parole under the 1910 Federal Parole Act. Id. In 1932, Congress changed that situation by passing a statute entitled "An Act to establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes." Act of July 15, 1932, ch. 492, 47 Stat. 696 (currently codified at D.C.Code § 24-201a et seq. (1981)) (the "District Parole Act"). The 1932 District Parole Act created a separate, local Board of Indeterminate Sentence and Parole to alleviate the burden placed on the Federal Parole Board by the need to make parole decisions for District as well as federal prisoners. H.R.Rep. No. 881, 72 Cong., 1st Sess. 2 (1932); S.Rep. No. 450, 72d Cong., 1st Sess. 2-3 (1932); see J. Nolan, One Hundred Prisoners: A Study of the Operation of Parole in the District of Columbia xxxiii (1936). See also H.R.Rep. No. 1341, supra, at 6 ("About 20 per cent of the prisoners at Leavenworth and Atlanta [as of 1910] are sent from the District of Columbia for violation of the laws of the District.").
The local Board of Indeterminate Sentence and Parole was authorized to parole prisoners held in District custody after making the same two inquiries as the 1910 Federal Parole Act required federal parole authorities to make. The discretion exercised by the District Board was also similar to that of the Federal Board. The members of the District Board, noted one contemporary observer, had "the license to make their own rules and regulations, and to determine the policies the board will follow." J. Nolan, supra, at 67. Compare White, supra, 12 A.B.A.J. at 51, quoted at pp. 1137-1138 supra. In practice, the Board considered a variety of factors in deciding whether to release a prisoner — among them, the prisoner's physical condition, his opportunity for employment, his institutional
There were three important differences between the federal and District parole systems in 1932. The first and most obvious one was geographic. The Federal Parole Board had nationwide authority over all prisoners confined in federal prisons. The District Board had authority only over prisoners in District custody. Second, federal parole authorities had jurisdiction only over federal prisoners serving definite terms of imprisonment or life terms. See White, supra, 12 A.B.A.J. at 51. As indeterminate sentencing did not exist at that time for federal offenders, all federal prison terms fit into one of these two categories. See 4 Attorney General's Survey at 20 & n.41. The District Parole Board, unlike its federal counterpart, had jurisdiction over prisoners serving indeterminate terms, since as a result of the 1932 District Parole Act, all District offenders received indeterminate sentences — minimum and maximum terms of confinement set by the sentencing judge, with the District parole authorities determining the actual period of incarceration. H.R.Rep. No. 881, supra, at 2-3; S.Rep. No. 450, supra, at 3. Third, prisoners confined in federal institutions became eligible for parole after serving one-third of their total term of incarceration. District prisoners confined in District custody became eligible for parole after serving only one-fifth of their total term. S.Rep. No. 450, supra, at 3; 75 Cong.Rec. 15,035-37 (1932) (remarks of Rep. Black).
The statute at issue in this litigation, section 24-209 of the current District of Columbia Code, was not part of the original District Parole Act. It was added as an amendment in 1934. The amendment granted federal authorities "the same power and authority" over District prisoners in their custody as the District Board would have if these prisoners were in District custody. The legislative history of this amendment is sparse: it consists primarily of a letter from M.C. Hazen to the Senate and House Committees on the District of Columbia, a letter that, with a few introductory remarks, makes up the entire Senate and House Reports. See S.Rep. No. 674, 73d Cong., 2d Sess. 1-2 (1934) (reprinting letter); H.R.Rep. No. 1446, 73d Cong., 2d Sess. 1-2 (1934) (same). Hazen wrote that the Commissioners of the District had submitted the proposed amendment in order to rectify a problem existing at Lorton, the District reformatory for juvenile offenders. When Congress enacted the District Parole Act in 1932, according to Hazen, "it was the intention to erect a penitentiary upon a portion of the site occupied by the reformatory at Lorton, Va., in which to confine hardened criminals for whom the conditions at the reformatory were unsuitable." H.R. Rep. No. 1446, supra, at 1-2 (Hazen). See J. Nolan, supra, at xxviii.
On April 25, the Senate passed the amendment without debate and sent it to the House. 78 Cong.Rec. 7276 (1934). The House approved its own version of the Senate bill without debate on May 28. 78 Cong.Rec. 9724 (1934). Representative Jenckes was the only person to comment upon the House bill. He offered these comments:
78 Cong.Rec. 9745 (1934). After praising the superintendent of prisons, Rep. Jenckes went on:
Id. On May 31, the House unanimously voted to substitute the Senate version for its bill. 78 Cong.Rec. 10,137 (1934). The bill was then presented to President Roosevelt who signed it into law on June 5. 78 Cong.Rec. 10,769 (1934).
In light of the historical background set out above, the 1934 amendment to the District Parole Act must be read as having had a very limited purpose. Congress was fully aware that United States prisoners could be confined in institutions under three separate jurisdictions (federal, District, or state), that the Attorney General had the authority to transfer United States prisoners across jurisdictional lines, and that a prisoner's eligibility for parole was governed by the rules of the jurisdiction having custody over him. Under existing law, federal prisoners could be subject to any one of three different types of parole systems, and to any of a much larger number of particular systems: at least 32 states had adopted parole by this time. (In addition, prior to the consolidation of federal parole authority in 1930, federal prisoners in federal custody could be subject to any of the different parole release standards for the several federal prisons.) Congress assumed that transferring a prisoner from one jurisdiction to another subjected that prisoner to the standards and authority of the parole board of the receiving jurisdiction. If, as appellants argue, the purpose of the 1934 amendment was to make the Federal Parole Board an agent of the District Board, Congress would surely have noted that the problem of parole standards depending on location of confinement was not restricted to the class of District offenders in federal prisons. Congress might even have altered the Attorney General's plenary transferring authority. But Congress did no such thing.
Other than the 1932 Act, Congress modified none of the statutes that gave rise to different standards for release. Nothing in the language or legislative history of the 1934 amendment even indicates Congressional awareness of any fairness issue raised by the transfer problem. There is simply no basis for believing that in enacting the 1934 amendment Congress was making a radical departure from its long and consistent practice of permitting parole standards to vary from custodial jurisdiction to custodial jurisdiction without regard to the jurisdiction of conviction. Rather, the only plausible construction of the statute is that it was designed to return to the Federal Parole Board a part of its jurisdiction that had been eliminated by the indeterminate sentencing provisions of the 1932 Act. Thus, the 1934 amendment simply ensured that a particular change in custody did not result in the denial of any opportunity for parole altogether. Indeed, it did not even do quite that: by leaving intact the Attorney General's authority to transfer a District prisoner from a federal prison to a state institution — an authority ratified
Appellants offer an alternative interpretation of section 24-209. They argue that Congress adopted the provision in order to reverse the decision of the Fifth Circuit in Lee v. Aderhold, 5 F.Supp. 950 (N.D.Ga. 1933), rev'd, 68 F.2d 824 (5th Cir.), cert. denied, 292 U.S. 633, 54 S.Ct. 718, 78 L.Ed. 1486 (1934). The Fifth Circuit held in that case that District prisoners confined in federal prisons could be considered for parole under federal, not District, guidelines, and it rejected a prisoner's argument that this disparity violated the equal protection clause. Aderhold v. Lee, 68 F.2d at 825.
The legislative history is totally silent on the existing disparities in the parole laws created by the 1910 Federal Parole Act and the 1932 District Parole Act. M.C. Hazen, the proponent of section 24-209, did not refer to these disparities or to Aderhold at all in his letter to the Senate and House Committees on the District of Columbia. S.Rep. No. 674, supra, at 1-2 (reprinting letter); H.R.Rep. No. 1446, supra, at 1-2 (reprinting letter). Neither the Senate Report nor the House Report nor Representative Jenckes — the only sources of legislative history for the provision — commented on these disparities or on the Aderhold decision. See pp. 1139-1140 supra. There is no basis whatsoever for the conclusion that Congress intended to overrule the decision in Aderhold: it is nowhere mentioned in the legislative history, and indeed there is no evidence that Congress was even aware of it.
On other occasions, Congress has clearly manifested its intention to overturn a decision, even in the field of parole law, with which it has disagreed. For example, when Congress enacted the Act of Oct. 26, 1974, Pub.L. No. 93-481, § 2, 88 Stat. 1455, overruling Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (repeal of statute that denied parole to certain narcotics offenders did not make previously convicted drug offenders eligible for parole), the legislative history expressly indicated the intent to overrule the case. H.R.Rep. No. 1442, 93d Cong., 2d Sess. 6-7 (1974); H.R.Rep. No. 1248, 93d Cong., 2d Sess. 8
If section 24-209 did not expressly repeal the Federal Parole Board's authority to apply its own standards, neither did it do so by implication. As a general rule, "repeals by implication are not favored," Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936), and "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). Section 24-209, as shown above, is readily reconcilable — indeed, is best read as being perfectly consistent with — the existing federal and District parole laws. The provision therefore cannot be read as repealing these laws by implication.
Appellants also seek support for their interpretation in Bracey v. Hill, 11 F.Supp. 148 (M.D.Pa.), aff'd, 77 F.2d 970 (3d Cir.1935). In that case, a District prisoner transferred to a federal penitentiary in Georgia contended that he could not be transferred to a prison outside of the District of Columbia because he had been prosecuted, convicted, and sentenced under the District penal code. 11 F.Supp. at 149. The Court rejected the contention.
The only statement in Bracey that supports appellants is the statement that section 24-209 was enacted "[p]robably as a result of" Aderhold, a statement that cannot fairly be read as anything more than conjecture. 11 F.Supp. at 149. The Bracey court examined none of the background or legislative history of the section and cited no support for this guess at its origin. The remainder of Bracey, to the extent it is relevant, actually undermines appellants' argument because it recognizes the authority of the Federal Parole Board over District prisoners once they had been transferred from the District to a federal institution.
THE EQUAL PROTECTION CLAIMS
Appellants challenge the application of federal parole standards to them on two grounds under the due process clause of the Fifth Amendment. Their first claim — that equal protection is denied by treating District offenders held in District custody under allegedly easier parole standards than are applied to appellants as District offenders held in federal custody — is without merit as a matter of law. No point will be served, therefore, by the trial the majority requires on remand.
In Koyce v. United States Board of Parole, 113 U.S.App.D.C. 152, 306 F.2d 759 (1962), this court rejected an equal protection argument indistinguishable from that made by appellants. The discrimination alleged was that military prisoners released from civilian federal prisons were subjected to parole requirements not imposed upon military prisoners released from military prisons. Id. at 762. The court held that, "[i]n determining whether [a prisoner] is being denied equal protection of the laws the class to which he belongs consists of the persons confined as he was confined, subject to the same conditions to which he was subject." Id. The court summarily disposed of the equal protection claim, first, by recognizing that Congress had validly determined that it was "desirable and feasible" for all persons confined in the same federal institution to be subject to the same release conditions and, second, by expressly adopting the "reasoning and conclusion" of the Fifth Circuit Court of Appeals in Bates v. Wilkinson, 267 F.2d 779 (5th Cir.1959). This court's express adoption of Bates's reasoning is significant for this case because Bates, in rejecting the same equal protection challenge as that made in Koyce, relied almost exclusively on its earlier decision in Aderhold v. Lee, 68 F.2d 824, and on Ex parte Karstendick, 93 U.S. 396, 23 L.Ed. 889. Aderhold had rejected the equal protection claim made here by appellants.
Appellants' first equal protection claim is thus foreclosed by an earlier decision of this court. Even if the issue were open, however, the claim should be dismissed. A discrimination based on place of custody must be upheld if it meets the rationality standard of equal protection review. That is made clear not only by Koyce but by the more recent Supreme Court case of McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). In McGinnis, the Court rejected an equal protection challenge to a part of New York's parole scheme. "The determination of an optimal time for parole eligibility," said the Court, "elicited multiple legislative classifications and groupings, which the court below rightly concluded require only some rational basis
The distinction appellants challenge here easily satisfies the rationality requirement. For most of our history, Congress has subjected prisoners to the parole standards of the jurisdiction operating the prison of confinement. That fact is itself legally significant. "`If a thing has been practiced for two hundred years by common consent, it will need a strong case' to overturn it." Schick v. Reed, 419 U.S. 256, 266, 95 S.Ct. 379, 385, 42 L.Ed.2d 430 (1974) (quoting Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922) (Holmes, J.)).
The nature of a parole is significant as well. Parole, like confinement in any particular prison, is neither a constitutional or statutory right nor an intrinsic part of the sentence received on conviction. Rather, it is a matter committed by Congress to the discretion of the Executive Branch (as constrained by statute) to adopt measures for the effective administration of prisons, for the execution of just punishment, for the protection of the public, and for the rehabilitation of offenders. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463-64, 101 S.Ct. 2460, 2463-64, 69 L.Ed.2d 158 (1981); Greenholtz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Warren v. United States Parole Commission, 659 F.2d 183, 189-97 (D.C.Cir.1981). As this court recognized in Koyce, Congress could rationally conclude that prisons should be managed largely on a prison-by-prison basis, allowing broad authority within each prison to set its own rules. Uniformity of parole standards within a prison might well be adopted as an important tool of prison management. Congress could rationally conclude that it would be deleterious to prisoner morale, discipline, and rehabilitation if persons confined within the same prison, perhaps within the same cell, were subject to different standards for release on parole.
In the area of parole practices, "few certainties exist." Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. at 8, 99 S.Ct. at 2104. It is an area of experimentation, and actual practices reflect the accommodation of many policies. The rationality of the scheme challenged here thus would not be undermined even if appellants could show, as they have alleged, that appellees do not rigidly adhere to a policy of uniformity of parole standards within each prison. In particular, that the same policy may not be applied to women prisoners
In sum, "there are plausible reasons for Congress' action" here, and it is "`constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.'" United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980) (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960)). Because "the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one[,] ... [s]uch action by a legislature is presumed to be valid." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (footnote omitted). Appellants have shown nothing that casts doubt on the rationality of Congress's tying parole standards for District offenders to place of custody, and hence that practice is valid.
United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), does not suggest a contrary conclusion or a higher standard of review. The court there said that equal protection would be denied by application to persons charged with criminal violations of federal law in the District of Columbia of a higher bail standard than was applied to persons charged with the same crime in federal courts outside the District. That difference, according to the court, would carve out a special exception for the District from an otherwise uniform national law. The court found no rational basis for the exception. It stated that, in any event, more than mere rationality would be required to uphold the difference, both because a fundamental liberty interest was involved and because the scheme discriminated against the District of Columbia, which, having no representation in Congress, is deprived of the usual political check on discriminatory treatment.
Section 24-209 of the D.C.Code, construed to permit application of federal parole standards to persons convicted of local District crimes who are confined in federal prisons, has none of the characteristics that give rise to constitutional problems, and to special scrutiny, in Thompson. First, the statute does not make a special exception for the District from an otherwise uniform national law; rather, it is part of a uniform, and rational, national scheme that generally treats prisoners in federal custody according to federal parole rules. Second, the discrimination challenged here is not against District residents, not, that is, between persons outside the District and those within; rather, it is between two classes of persons convicted in the District, between local offenders in local custody and local offenders in federal custody. Section 24-209 thus is like any law governing the District that classifies and therefore does not call forth Thompson's suspicion of discrimination against a class unrepresented in the legislature. Finally, the fundamental liberty interest in Thompson is that of someone whose conviction may be reversed on appeal. Here, by contrast, the validity of the criminal conviction is not at issue, and whatever rights appellants may have regarding parole are fully respected by a rationality standard of review. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973).
Appellants' second equal protection claim is that application of federal parole standards to them, as male District offenders in federal custody, unconstitutionally discriminates against them because female District offenders in federal custody are considered for parole by the District parole board under District standards. I conclude that this claim, unlike appellants' other claims, warrants a remand because neither the legal nor the factual issues are sufficiently developed.
The alleged sex differential arises, somewhat ironically, from a consent decree in Garnes v. Taylor, Civ. No. 159-72 (D.D.C.
The sex discrimination issue is unclear on factual grounds as well. For appellants to make out their claim, they must, as a first step, prove differential treatment of men and women. The record does not currently contain that showing. Indeed, there is a strong suggestion in the record that, despite the Garnes decree, women District offenders are not consistently receiving parole consideration by the District board under District parole standards. See L. Steinitz, The Garnes Decree in Reality: Parole Eligibility and Determination for D.C. Women in Federal Correctional Institutions (1981), Appendix for Appellants at 124. In addition, it is not clear whether application of whatever standards are applied has resulted in treatment of men less favorable than that accorded women. At this time, in sum, it is impossible to say whether there is any significant difference in parole standards applied to males and females, let alone whether any difference there may be is unconstitutional. A remand on this issue is therefore necessary.
Ex parte Karstendick, 93 U.S. 396, 400, 23 L.Ed. 889 (1876).
Ex parte Karstendick, 93 U.S. at 404.
36 Stat. 821.
Bracey v. Hill, 11 F.Supp. at 149 (citations omitted).