supra at 467 U.S. 843 n. 9.
In our case we cannot find that the Parole Commission's construction of § 24-209 is either a reasonable or a permissible interpretation of the statute. Every court since 1937 which has analyzed the statute, including the Cosgrove district court, cited above, has concluded that "§ 24-209 enables the U.S. Commission to make the parole-release determination for D.C. Code offenders housed in federal prisons but requires that body to employ D.C. laws and regulations in making such decisions." Johnson v. Williford, 821 F.2d 1279, 1288 (7th Cir. 1987); Brewer v. Swinson, 837 F.2d 802, 805 (8th Cir. 1988) (vacated as moot); Walker v. Luther, 830 F.2d 1208, 1210-17 (2d Cir. 1987); Story v. Rives, 68 App. D.C. 325, 97 F.2d 182 (D.C.Cir.), cert. den., 305 U.S. 595, 83 L. Ed. 377, 59 S. Ct. 71 (1938); Bracey v. Zerbst, 93 F.2d 8 (10th Cir. 1937); Cosgrove v. Thornburgh, 703 F. Supp. 995, 1001 (D.D.C. 1988).
The sound reasoning of all of these courts is quite similar, and we find no reason to expand upon it. Rather than take up the pages of yet another reporter, we adopt in full the conclusions of the D.C. District Court and the District of Columbia, Second, Seventh, Eighth, and Tenth Circuit Courts. As the Second Circuit noted in Walker, supra at 1215, "it is apparent that in enacting § 24-209 Congress planned that the same treatment would be accorded D.C. offenders wherever situated by parole decisions being consistently made on the basis of D.C. statutory and regulatory standards. The Commission's contrary view therefore is not entitled to deference and must be rejected."
The Commission's sole argument for the proposition that we should not apply the reasoning of the above cases to Ms. Bryson appears to be that the Cosgrove, Johnson, Brewer, and Walker cases were all brought by male prisoners, and that this court should therefore not apply these decisions to Ms. Bryson, a female. In support of its position, the Commission relies heavily on the Garnes consent decree, which it claims gives female prisoners the right to be referred to D.C. prior to their parole hearings under the D.C. guidelines. This, contends the Commission, allows female inmates to secure the same parole benefits as are enjoyed by males.
The Commission further argues that since female inmates already have access to the Garnes procedures, granting females the benefits enjoyed by male federally-housed inmates under Cosgrove, (requiring the U.S. Parole Commission to apply the D.C. guidelines), would grant to women a benefit not now enjoyed by men, who are not allowed to be referred to D.C. for their hearings. In essence, the Commission argues that the current system of differential treatment of male and female D.C. Code offenders is more equal than would be a system which uniformly applies the Cosgrove decision.
The Commission's argument is bizarre and contrary to law. Our duty here is not to construe the law to do "rough justice" between male and female prisoners, such that each has a benefit which the other is denied. Ours is a simple matter of statutory construction. Neither Cosgrove, nor the numerous circuit court opinions discussing § 24-209, nor the statute itself mention any distinction between male and female prisoners. The only place where the distinction has been made is in the Baer memo to the U.S. Parole Commission's staff.
While the Commission makes much of the Garnes consent decree, the decree has no bearing on § 24-209. Section 24-209 makes no distinction between male and female prisoners, and Garnes does not alter, or even mention, § 24-209. The Cosgrove, Johnson, Brewer, and Walker courts were all interpreting § 24-209 and those courts did not limit their rulings to males. We may not simply assume such a discriminatory construction.
In short, Congress has passed a statute which instructs the Commission how to calculate parole for D.C. prisoners housed in federal prisons. However, the Commission has, on its own initiative, and without any evidence of Congressional intent, decided that the statute applies only to male prisoners. We must conclude that the U.S. Parole Commission's argument is not only counter-intuitive, but unreasonable and contrary to law. We find that Congress has clearly instructed the U.S. Parole Commission to apply the D.C. parole guidelines
to all federally-housed D.C. prisoners, whether male or female.
The Commission's final argument is that D.C. does not have sufficient facilities to parole all female D.C. Code offenders in accordance with D.C. guidelines. The reason advanced is that D.C. prisons are already overcrowded.
The Commission's argument is a red herring. It presupposes that prisoners must be transferred to D.C. prisons in order to have their parole determined in accordance with D.C. guidelines. This argument is belied even in Ms. Bryson's case. The U.S. Parole Commission initially calculated Ms. Bryson's parole eligibility in accordance with D.C. guidelines, even though she was at the time housed in a federal prison in California. Clearly it is not necessary to transfer prisoners to D.C. for the calculation of their parole terms under the D.C. guidelines. In fact, 24-209 itself is designed to require the U.S. Parole Commission to calculate parole of federally-housed D.C. Code offenders in accordance with D.C. guidelines no matter where these prisoners are housed in the federal system.
D. Equal Protection and Due Process
Since it is clear that the petition should be granted as a matter of statutory interpretation, there is no need to reach the constitutional issues raised.
At the hearing before the court, the commission argued that if the court should grant the petition, a proper remedy would be to order Ms. Bryson transported to the District of Columbia for a hearing before the D.C. Board of Parole. The petitioner requested that we order the Commission to abide by its decision made at the March 14, 1990 hearing, at which the D.C. guidelines were applied to Ms. Bryson's case, or that in the alternative, we order the Commission forthwith to convene a panel to apply D.C. guidelines to Ms. Bryson's case. We find either of the petitioner's options to be proper.
There is no support for the respondents' remedy. This court's order is based solely on D.C. Code § 24-209. That provision nowhere provides that prisoners should be transported back to the District of Columbia for calculation of their parole eligibility. Instead, § 24-209 mandates that the U.S. Parole Commission use D.C. guidelines in cases involving D.C. Code offenders such as Ms. Bryson. Furthermore, if overcrowding in the D.C. prisons is a concern of the respondents, as they contend that it is, requesting Ms. Bryson's transfer back to D.C. for her hearing is a rather peculiar request, since it can only exacerbate the overcrowded conditions.
Either of the remedies proposed by the petitioner would bring the Commission into compliance with § 24-209, so we give the Commission leave to choose between them. The Commission may either convene a panel to apply D.C. guidelines to Ms. Bryson's case, or proceed in accordance with the parole determination made at the March 14, 1990 hearing.
For the foregoing reasons, and after careful consideration of the written and oral arguments of the parties, and the exhibits submitted, good cause appearing therefor, IT IS HEREBY ORDERED that:
1. The petition for writ of habeas corpus is GRANTED pursuant to 28 U.S.C. § 2241;
2. The U.S. Parole Commission is ordered to convene a panel at the earliest practicable time and place to conduct a new parole hearing for Ms. Bryson in accordance with District of Columbia parole guidelines, including all laws and regulations applied by the D.C. Board of Parole;
3. In no case shall the ordered parole hearing be held later than December 9, 1991.
4. As an alternative to granting Ms. Bryson a new hearing as directed above, the Commission may elect to grant forthwith Ms. Bryson's parole in accordance with the determination made at the March 14, 1990 hearing, at which a U.S. Parole Commission panel applied the D.C. guidelines to Ms. Bryson's case.
IT IS SO ORDERED.