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Untitled Document

Will HR 3072 exclude parole for drug law prisoners?

By a prisoner of the drug war

I reviewed the June 27, 2005 version of HR 3072, a bill to revive federal parole. My major concern is the delay that federal prosecutors or courts may cause by claiming a prisoner with ten years time served is not an "eligible prisoner" under 18 U.S.C. Sec. 4201(4). I fear this could be read to exclude every current prisoner with a conviction for the non-parolable drug laws under 21 U.S.C. § 841 and 848, and non-violent offenders with a three-strike life sentence without parole under 18 U.S.C. § 3559(c) because of prior small felonies.

This would mean only those who murder presidents and federal witnesses, defraud elderly of life savings, commit genocide, drive by shootings, kidnapping, wrecking a train, and internet child porno perverts might get one-third parole. I am sure that was not the intent. But those statutes allow parole, drug laws don't.

Here is the problem in statutory construction and interpretation:

18 U.S.C. § 4205 states: Time of eligibility for release on parole.

(a). Generally - Whenever confined and serving a definite term or terms of one year of more, a prisoner shall be eligible for release on parole after serving one-third of such term or terms on or after serving ten years of a life sentence or of a sentence of over 25 years notwithstanding any other statute to the contrary. A prisoner convicted under the law of the District of Columbia shall be subject to the guidelines used by the former District of Columbia board of parole. [underlining added to show conflict with § 4201(4).]

A mean spirited judge or prosecutor could argue that a drug law prisoner is not first an "eligible prisoner" under § 4201 definition:

(4) The term "eligible prisoner" means any federal prisoner who is eligible for parole pursuant to this title or any other Law, including any Federal prisoner whose parole has been revoked, and who is not otherwise ineligible for parole;

[Again, I added the underline emphasis to show conflict with our intent for all drug law prisoners, not commuted from a death penalty, to be eligible for parole.]

Since 21 U.S.C. § 841(b) and § 848(a) and (b) penalty provisions explicitly and unequivocally state the defendant is not eligible for parole, a prosecutor could argue that a drug war prisoner is not first an "eligible prisoner" under 18 U.S.C. § 4201(4) because every drug law prisoner is one "who is otherwise ineligible for parole" by statute. Therefore, such a drug law prisoner cannot be under the § 4205(a)'s eligibility statute in the second place.

And, the § 4205(a) term of "notwithstanding any other statute to the contrary" only applies to the other criminal statutes, the 1984 Sentencing Reform Act statutes on sentencing in 18 U.S.C. § 3551 et seq., and the United States Sentencing Guidelines. However, the drug laws in effect since October 27, 1986 (Anti-Drug Abuse Act) included the terms without possibility of parole, or no parole, and they are still effective even if the SRA deletion of parole is repealed by HR 3072.

THE REMEDY is one that Glenn Early previously wrote in a 1/24/04 and 4/19/04 draft in which the terms of "without possibility of parole" or "no parole" are deleted from the drug law and three-strike statutes penalty provisions, and the amendment is made retroactive.

Another remedy is simply to delete the HR 3072 version of § 4201(4)'s last eight words of "and who is otherwise ineligible for parole."

I want to highly commend Glenn Early and the folks at FedCure for all the work they did on this version of the parole bill. This is by far the best version and the most inclusive. I don't wish to appear critical of any part of it. I support it. It is just my18 years of cynical experience with the anti-defendant judges and prosecutors who interpret statutes against us that makes me bring this matter to your attention.

In short, I believe that as long as I have a sentence under a drug law provision that states I "shall be ineligible for parole," I will never be considered for parole - until that provision is amended. At best, I would do thirty years on a nonviolent crime.

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