(Posted to web April 12, 2000.)
The Benson B. Weintraub Esq. Report on Parole
June 20, 1995
CONFIDENTIAL ATTORNEY / CLIENT WORK PRODUCT PRIVILEGE
VIA TELEFAX -202/298-7570
Nancy Luque, Esq.
Katten Muchin & Zavis
Washington, D.C. 20007-5201
RE: Jonathan Pollard
You requested my advice and counsel regarding the Parole Application of Jonathan Pollard. This shall confirm the recommendations that Alan Chaset, Esq. and I made at our meeting a number of months ago, as well as the advice I provided during the conference call this week in which you, Carol Pollard and I, participated.
Mr. Pollard's minimum parole eligibility date on his life sentence is approaching. Under 18 U.S.C. § 4205(a), an inmate serving a life sentence or a sentence of over 30 years is eligible for parole after serving 10 years of such term, except to the extent otherwise provided by law. I am unaware of any mandatory minimum or other impediment to the terms of parole eligibility codified at
§ 4205(a). The Commission may grant or deny release on parole notwithstanding the parole guidelines codified at 28 CFR § 2.20. See also 18 U.S.C. § 4206(c).
As a procedural matter, an inmate eligible for parole may receive a hearing within 120 days of a prisoner's arrival at a federal institution or as soon thereafter as practicable, except that for a prisoner with a minimum term of parole ineligibility of 10 years or more, the initial hearing is conducted at least 90 days prior to the completion of such minimum term, or as soon thereafter as possible. 28 CFR § 2.12(a). However, "An eligible prisoner may knowingly and intelligently waive any proceeding." 18 U.S.C. § 4208(a). An inmate may either decline to apply for or waive parole consideration. U.S. Parole Commission, Rules and Procedures Manual at § 2.11-02 (11112/91). "No action is taken by the Commission unless the prisoner subsequently applies for parole." Ibid.
There are a number of permissible actions which can be taken following an initial parole hearing. The Commission may recommend an "effective date" of parole (within 6 months from the date of hearing); a presumptive parole date (more than 6 months from the date of hearing but no later than 15 years); a 15 year reconsideration hearing (at 15 years from the month of the initial hearing); or, continue to expiration (if the statutory release date is within 15 years of the month of the hearing). United States Parole Commission, Rules and Procedures Manual at §2.12-02 (7/7192). "A fifteen-year reconsideration hearing shall be a full reassessment of the case,
pursuant to the procedures at § 2.13." 28 CFR § 2.14(c).
Additionally, it is my view that this case will be designated "Original Jurisdiction," meaning that the parole application is automatically referred to the National Commissioners for consideration by the full Board rather than by the Regional Commissioner with jurisdiction over the institution in which the inmate is housed. Original Jurisdiction is exercised by the Commission in cases where "prisoners ... have committed serious crimes against the security of the Nation, e.g., espionage or aggravated subversive activity." 28 CFR § 2.17(b)(1). The "O.J." designation can also be made on the basis of "national or unusual attention because of the nature of the crime, arrest, trial, or prisoner status, or because of the community status of the offender or his victim." 28 CFR § 2.17(b)(3). Moreover, "prisoners sentenced to a maximum term of forty-five years (or more) or prisoners serving life sentences" are designated original jurisdiction cases. 28 CFR § 2.17(b)(4).
Against this procedural background, I reaffirm my previous recommendation that pending
further [political] developments,
Mr. Pollard should decline to apply for parole at this time. I
have little or no doubt that the disposition would indicate a
15 year set-off and there should be
The Parole Commission generally derives its file materials from records maintained by
the Bureau of Prisons, including the Presentence Investigation Report. 18 U.S.C. § 4207.
I recommend that you pursue a request under FOIA/PA in order to access these records and to
begin the process of administrative review with regard to exemptions which I anticipate will be
claimed. This should set the stage for FOIA/PA enforcement proceedings, particularly in respect of rights arising under the Privacy Act of 1974. See e.g., Sellers v. U.S. Bureau of Prisons, 959 F.2d 307 (D.C.Cir. 1992).
In conclusion, I strongly urge you to impress upon Mr. Pollard that the consensus of informed opinion among the post-conviction attorneys with whom I have reviewed this scenario concur in that it would be ill-advised to proceed to hearing at this time. Rather, I encourage you to more fully pursue global and national political solutions prior to seeking any Executive Branch consideration, including parole or clemency.
If I can be of further assistance, please don't hesitate to contact me.
Very truly yours,
Benson B. Weintraub, P.A.
LAW OFFICES OF BENSON B. WEINTRAUB
cc: Carol Pollard
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