
    George RANKIN et al., Plaintiffs, v. Alphonso CHRISTIAN, Commissioner of Public Safety, and Daniel Andino, Warden, Richmond Penitentiary, Defendants.
    Civ. No. 80/1974.
    District Court, Virgin Islands, D. St. Croix.
    June 6, 1974.
    
      Edward J. Ocean, Christiansted, St. Croix, V. I., for plaintiffs.
    Verne Hodge, Átty. Gen., by: Henry L. Feuerzeig, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for defendants.
   MEMORANDUM OPINION AND ORDER

WARREN H. YOUNG, District Judge.

Petitioners filed this action, which they styled a “petition to show cause,” on January 21, 1974, proceeding pro se. On February 4, 1974, I construed this petition as one for a Writ of Habeas Corpus, appointed counsel for petitioners, and permitted them to amend their petition to address the proper party respondent, Warden Daniel Andino. Subsequently the Government moved to dismiss. I denied this motion but granted petitioners leave to reamend their petition to state more specific due process and equal protection violations.

The facts have been stipulated to by counsel. Simply stated, in June and December of 1973 the parole board “authorized” petitioners’ release; however, on both occasions the Governor disapproved their parole pursuant to 5 VIC § 4604, which provides:

No release on parole shall become operative until the findings of the Board of Parole and the terms of the parole have been approved by the Governor.

Petitioners have challenged both the constitutionality of this statute and, more particularly, the constitutionality of the Governor’s policies of approval and disapproval. I shall discuss these challenges under three headings:

1. Have the Governor’s policies of approval and disapproval been so arbitrary as to deny petitioners due process of law?
2. Have the Governor’s policies of approval and disapproval deprived petitioners of the equal protection of the laws?
3. Does 5 VIC § 4604 deny petitioners procedural due process?

I. ARBITRARINESS

As can be seen from the tabulation in Appendix II, the Governor has denied 21 of 22 paroles authorized for prisoners convicted of distributing narcotics. In this regard, I find the Governor’s decision to grant one parole to be quite significant. Now, on the record before me, it is not possible to say why the Governor has chosen to grant or deny parole in any particular case. But I may take judicial notice of the fact that there were special circumstances in that one case — and that I myself brought these circumstances to the Governor’s attention. Therefore, while one can clearly infer that the Governor has a policy against granting parole to those convicted of distribution, this policy is not so absolute as to admit of no exceptions. In short, I believe that if compelling individual reasons for parole exist, then the Governor will weigh these against whatever reasons he may have for his general policy against parole for distributors. Since this is the case, I cannot say that “the ‘protection of the individual against arbitrary action’ which Mr. Justice Cardozo characterized as the very essence of due process” has been withheld. Slochower v. Board of Educ., 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956), citing Ohio Bell Tel. Co. v. Public Util. Comm’n, 301 U.S. 292, 302, 57 S.Ct. 724, 81 L.Ed. 1093 (1937). This claim of unconstitutionality, then, must be resolved against the petitioners.

II. EQUAL PROTECTION

There can be no question that those convicted of narcotics distribution receive distinctly less favorable parole treatment than all other convicts. Referring again to Appendix II, it may be seen that authorized paroles for distributors have been approved a mere 4.5% of the time, whereas parole approval for all other offenders is virtually automatic (94.1% approval). Still, the fact that a classification has been made does not alone render the practice unconstitutional. Rather, the question is whether the classification is a reasonable one. New York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024 (1938).

I believe there is a rational basis for selecting out distributors for harsher treatment than others. Through his antiparole policy for distributors, the Governor may reasonably be attempting to curb a growing narcotics problem by “quarantining” convicted dealers and by upgrading the severity of the offense for added deterrence. I construe 5 VIC § 4604 to entrust such wide policy-making discretion to the Governor, and if this discretion is exercised within the bounds of legality I may not interfere.

To say this, I need not necessarily agree with the Governor’s policy, which indeed may appear somewhat eccentric. For example, the Governor’s failure to distinguish between marijuana and “hard” drug offenders is not in accord with modern medical and sociological thinking. But I cannot hold that the Governor’s more traditional view of these offenses is an illegitimate one. Nor can I say there is no validity in the contention that “soft” drug dealers are also likely to be, or to become, peddlers of “harder” narcotics. Likewise, some may question the Governor’s automatic parole grants for offenses which would universally be rated as far more serious than distribution. Few, for example, would rank sale of marijuana as comparable in gravity with murders or serious assaults. Yet the Governor has approved parole for 16 of 17 (94.1%) convicted murders authorized for parole and all six of those convicted of first degree assault. Still, I cannot say that the Governor has not properly considered the epidemic characteristics of drug offenses as more amenable to quarantine than murder or assault, and it is possible that a higher rate of recidivism for drug offenders, as opposed to murderers, warrants an acceleration of the deterrence available against the lesser offense. Finally, one could point to several instances of parole approval as possibly indicating the classification of distributors is capricious. For example, the Governor approved parole for a prisoner convicted of possessing 21 decks of heroin and for another convicted of smuggling 15 pounds of marijuana. But while it might seem more logical to have included such cases in a narcotics-quarantine policy, the Governor did have to draw a line somewhere and I am loath to find that his strict limitation of disfavored treatment to distributors is irrational.

Critical to any additional consideration of the appropriateness of the Governor’s policy is my philosophy of parole. I believe that parole is not just an aid to individual rehabilitation, but that it is also a legitimate tool to effect society-wide policies of deterrence. My thoughts on this subject were well expressed by the Court in Battle v. Norton, 365 F.Supp. 925, 931-932 (D.Conn.1973):

Whether and to what extent general deterrence should be considered in parole decisions as a matter of policy is not a matter for this Court. [Citation omitted.] So long as the factor is within the discretion vested in the Board by Congress a parole decision relying upon it is immune from judicial interference.
Petitioner is really contending that the parole decision must focus exclusively on the prisoner’s progress toward rehabilitation, and that such an approach precludes the designation of any time period as a minimum . . . The Board . . . stresses . . . that in some cases “offense severity will so outweigh favorable risk that a prisoner . . . will not be paroled.

The Court then went on to state, at 932:

The Board must make a judgment as to an appropriate minimum time period for such prisoners, always retaining the discretion to release at an even earlier date in the truly extraordinary case. Such an approach does not, as petitioner alleges, interfere with the sentencing jurisdiction of the courts. If a court wants a defendant to serve a brief sentence or no sentence at all, it has ample techniques for accomplishing that result.

I think that the Governor has similar discretion under our statutory scheme to deny parole to whole classes of prisoners for general policy reasons, except of course “in the truly extraordinary case.” Since the Governor has not overstepped the equal protection clause in the wielding of this discretion, supra, my review on this matter may go no further.

III. PROCEDURAL DUE PROCESS

In the wake of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (rudimentary due process hearing required for parole revocation), a number of courts have considered afresh the question whether due process applies to the denial of parole. The majority have rejected the view that due process applies at the time parole is denied, but a substantial and growing minority have differed, at least to the extent of requiring reasons for a denial to be given to an inmate. I believe that the import of Morrissey, and controlling pre-Morrissey Third Circuit precedent, compel me to follow the majority line of decisions.

As one commentator has well phrased it, “[w]hile the [Morrissey] opinion eschewed the theory that parole is a privilege, it approved the traditional idea of a special regime for parolees. Under this view of parole, the board exercises almost complete discretion over the choice of imprisonment or restricted freedom as the means to rehabilitate its charges . . . ” 86 Harv.L.Rev. 95, 101 (1972). Significantly, the Morrissey Court stated that a parolee’s “condition is very different from that of confinement in a prison.” True, many courts have had logical difficulty in distinguishing the loss of liberty from parole revocation from various in-prison decisions which just as certainly increase actual time served in prison. See 86 Harv.L.Rev. at 101 nn. 31-32; note 11 supra. The Morrissey Court, however, may have intended a legal, rather than logical delimitation of due process rights. To be sure, Morrissey’s language, supra, may be merely a tacit approval of the “minimum due process” requirements which many courts have demanded for prison disciplinary hearings. E. g. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971). Likewise, Morrissey’s distinction between in and out of prison process would not necessarily be inconsistent with a right to written reasons when parole is denied.

Nevertheless, until the Supreme Court provides some definitive resolution to this problem, I believe I must follow the Third Circuit’s pre-Morrissey precedents, which immunize parole decisions from the reach of due process. See United States v. Frederick, 405 F.2d 129 (3d Cir. 1968); Mosley v. Ashley, 459 F.2d 477 (3d Cir. 1972); Madden v. New Jersey State Bd. of Parole, 438 F.2d 1189 (3d Cir. 1971). But this holding should not necessarily indicate that I believe these decisions are correct or will stand the test of time. I will simply not take it upon myself to enlarge due process protections for prisoners in this jurisdicton at this time. But I would most strongly urge the Governor that in all future parole disapprovals he give the parole eligible specific written reasons for his decision. This practice would be both much fairer and more open than the current summary procedure and would free the Governor’s parole powers from much of the substantial cloud which, even after this Opinion, lingers over them.

ORDER

On the premises considered, in accordance with the above Opinion, the petitions for a Writ of Habeas Corpus are denied.

APPENDIX I

STIPULATION

It is hereby stipulated and agreed between the parties, by the signatures of their undersigned counsel, that Melvin H. Evans has been Governor since July 1, 1969, that since that time the Board of Parole recommended that the following individuals be paroled, that they were convicted for the offenses noted after their names, and that Governor Evans approved or disapproved parole for each as indicated:

Authorizations of December 1969

Name Offense of which Convicted Action of Governor

Eric Antonio Barnes Drawing and Delivering Worthless Checks, Embezzlement Approved

Santana Robles Colon Assault First Degree Approved

Clement Dickerson Robbery, Burglary, Grand Larceny Approved

Vernon Dunlop Assault First Degree Approved

Reginald I. Jeffers Murder Second Degree Approved

Camille Smalls Murder First Degree Approved

Authorizations of April 1970

Carmen Maria C. Cruz Accessory after the Fact Approved

Authorizations of June 1970

Raymond U. Joseph Forgery Approved

James Joseph O’Hara Obtaining Money or Property under False Pretenses Approved

Sidney G. N. Timothy Burglary First Degree Approved

Authorizations of December 1970

Carlos Corcino Felix Burglary Third Degree Approved

Antonio Escobar Garciaz Murder First Degree Approved

Rudiel A. Pilgrim Burglary, Grand Larceny, Fleeing Arrest Approved

Junito Ortiz Rivera Assault with Intent to Commit Robbery Approved

Juan Ascencio Rolden Murder First Degree Approved

Authorizations of July 1971

Charles W. Callwood Robbery Approved

James Duvergee Assault First Degree Approved

Errol Benson Hughes Robbery Approved

Rene Joseph Rape Second Degree Approved

Elric Meyers Robbery Approved

Luis Angel Navarro Possession of Narcotic Drugs (21 decks of heroin) Approved

Salvadore S. Ortiz Involuntary Manslaughter Approved

Benito S. Rivera Murder First Degree . Approved

Hipólito S. Rivera Murder First Degree Approved

Rafael A. Rivera Murder Second Degree Approved

George Mclvor Stoute Murder .Second Degree Approved

Rupert Webbe Mayhem Approved

David A. Wynn Escape from Custody Approved

Authorizations of December 1971

No records available.

Authorizations of June 1972

Luis Alphonso Barrata Illegal Possession of Narcotic Drugs with Intent to Barter, Exchange and Sell (Smuggling, 15 pounds marijuana) Approved

Francis Bryan Assault First Degree with Intent to Commit Robbery Approved

Lawrence Henry Assault Third Degree Approved

Steven Klein Unauthorized Use of Motor Vehicle Approved

Manuel Torres Robbery Approved

Authorizations of December 11,1972

Alan Crantoun Assault First Degree and Brandishing Firearm Approved

Lynn Dickerson Robbery Disapproved

Leroy Elcock Murder Second Degree Approved

Thomas Lawrence Robbery Disapproved

Julio C. Marine Robbery Approved

Richard A. Morris Burglary Third Degree Approved

John Olsow Obtaining Money under False Pretense Approved

Carmelo Torres Rape First Degree Disapproved

Carlos H. Torres Murder Second Degree Approved

Eldridge Venzen Forgery Approved

Leonard Williams Attempted Rape and Escape Approved

Reginald Yearwood Robbery Approved

Authorizations of June 1973

Luther Benjamin, Jr. Attempted Robbery Approved

Miquel Benitez Possession and Sale of Narcotics Disapproved

Ivan L. Burnett Unlawful Distribution of Controlled Substance Disapproved

Pierre Celestin Unlawful Distribution of Controlled Substance Disapproved

Lynn Dickerson Robbery Approved

Jesus Estien Possession and Sale of Narcotics Disapproved

Wayne Holst Buying and Receiving Stolen Goods Approved

Gary Wade Hunt Unlawful Distribution of Controlled Substance Disapproved

Thomas Lawrence Robbery Approved

Kenneth N. Little Unlawful Distribution of Controlled Substance Disapproved

Domingo 0. Navarro Murder Second Degree Burglary, Escape, Assault First Degree Approved

George Rankin Unlawful Distribution of Controlled Substance Disapproved

Ernest Schloss Unlawful Distribution of Controlled Substance Disapproved

Santos Valentin Ruiz Murder Second Degree, Assault First Degree, Escape, Burglary Third Degree Disapproved

Robert E. Williams Robbery Approved

Carlos S. Ramos Possession and Sale of Narcotics Disapproved

Jose Rivera Possession and Sale of Narcotics Disapproved

Carmelo Torres Rape First Degree Disapproved

Authorizations of December 17,1973

Ivan Burnett Unlawful Distribution of Controlled Substance Disapproved

Liston Phillips Assault, Mayhem Approved

Pierre Celestin Unlawful Distribution of Controlled Substance Disapproved

Gary Wade Hunt Unlawful Distribution of Controlled Substance Disapproved

Kenneth N. Little Unlawful Distribution of Controlled Substance Approved

Ernest Sehloss Unlawful Distribution of Controlled Substance Disapproved

George Rankin Unlawful Distribution of Controlled Substance Disapproved

Jose Rivera Possession and Sale of Narcotics Disapproved

Miquel Benitez Possession and Sale of Narcotics Disapproved

Carmelo Torres Rape First Degree Approved

Carlos S. Ramos Possession and Sale of Narcotics Disapproved

Jesus Estien Unlawful Possession and Sale of Narcotics Disapproved

Santos Valentin Ruiz Murder Second Degree Approved

Rafael Hendricks Assault Third Degree Approved

Juan C. Morales Murder Second Degree Approved

David Castillo Murder Second Degree Approved

Charlesworth John Murder Second Degree Approved

Leslie Tiwari Grand Larceny, Burglary Third Degree Approved

Michael George Illegal Possession and Sale of Controlled Substance Disapproved

Jose Jacobs Voluntary Manslaughter Approved

David N. Santiago Attempted Burglary Approved

Hipólito Acosta Burglary Third Degree, Grand Larceny Approved

Eustace Lewis Robbery • Approved

Eugene Bastion Assault First Degree Approved

Roy A. Hansen Grand Larceny Approved

Samuel Andrews Robbery Approved

Lionel Magras Murder Second Degree Assault Approved

DATED : May 15, 1974

(s) EDWARD J. OCEAN

Attorney for Petitioners

VERNE A. HODGE, Attorney General

By: -

(s) HENRY L. FEUERZEIG First Assistant Attorney General Attorneys for Respondents

APPENDIX II 
      
      . The Government also has moved to dismiss the reamended petition. I need not rule on this motion as I shall reach the merits in this Opinion.
     
      
      . See Appendix I.
     
      
      . This is the correct terminology, as pointed out by petitioners’ counsel, and the stipulation of the parties has been appropriately amended.
     
      
      . See Appendix II.
     
      
      . Since I have adjudged the Governor’s policy to be nonarbitrary I need not decide here whether, as the Government has contended, the Governor has a “right to be arbitrary.”
     
      
      . The United States Parole Board makes the following judgments as to the relative severity of narcotics and other offenses:
      
        "Category C — Moderate Severity Offenses Sale of marijuana (less than $5000) . . .
      
        “Category D — High Severity Offenses Sale of marijuana ($5000 or more) . . . Sale of “Heavy Narcotics” to support own habit” .
      
        “Category E — Very High Severity Offenses . . . Assault (serious injury) . . . Sale of “Heavy Narcotics” for profit
      
        “Category E — Greatest Severity Offenses . . . Kidnapping . . . Willful homicide
      
        See Battle v. Norton, 365 F.Supp. 925, 934 D.Conn.1973) (Appendix II).
     
      
      . See Appendices.
     
      
      . See Appendix II.
     
      
      . And perhaps to have excluded those convicted of minor sales of marijuana.
     
      
      . See Farries v. United States Bd. of Parole, 484 F.2d 948 (7th Cir. 1973); Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir. 1973) (en banc); Barradale v. United States Bd. of Parole and Pardons, 362 F.Supp. 338 (M.D.Pa.1973); Stone v. United States Bd. of Parole, 360 F.Supp. 22 (D.Md.1973); Bradford v. Weinstein, 357 F.Supp. 1127 (E.D.N.C.1973); Williams v. United States, 327 F.Supp. 986 (S.D.N.Y.1971).
     
      
      . See United States ex rel. Harrison v. Pace, 357 F.Supp. 354 (E.D.Pa.1973); United States v. Chairman, N.Y.State Bd. of Parole, 363 F.Supp. 416 (E.D.N.Y.1973); In re Sturm, 11 Cal.3d 179, 113 Cal.Rptr. 361, 521 P.2d 97 (1974) ; Childs v. United States Bd. of Parole, 371 F.Supp. 1246 (D.C., Oct. 10, 1973) ; cf. King v. United States, 492 F.2d 1337 (7th Cir., March 13, 1974) (statutory) .
     
      
      . Two additional arguments by petitioner may be disposed of here. First, petitioner has contended that, under the bifurcated parole structure in the Virgin Islands, gubernatorial disapproval of parole board authorizations works as a revocation of a parole grant and thus comes literally under Morrissey’s procedural strictures. I reject this argument as a solipsistic exercise and prefer to view our statute as a single process, leading to a parole grant only after gubernatorial approval.
      Secondly, petitioner has advanced the “midnight” contention that a flat parole denial is cruel and unusual punishment, citing In re Foss, 15 Cr.L.Rep. 2049 (Cal.Sup.Ct., March 14, 1974). The critical factor in cruel and unusual punishment analysis, however, is the disproportionality of a sentence to the severity of the crime. Foss dealt with a ten year minimum sentence, without parole, for drug distributors, and condemned it. None of the petitioners in this case will serve more than three years. I hold that a three year sentence, without parole, is not cruel and unusual punishment for a drug dealer.
     