The National Parole Commission has again blocked Veronza Bower Jr.’s right to be released on mandatory parole after serving more than 31 years in prison. The Commission’s latest decision is the third in a series of high-handed and improper actions to deny Veronza his right to be released on parole. It was made in complete disregard of the Commission’s legal obligation to follow applicable federal statutes as well as its own rules and regulations. We believe this latest and most egregious decision, made at the request of Attorney General Alberto Gonzales, is politically motivated, disregards Veronza’s exceptionally good conduct in prison and is an unlawful denial of his right to due process.
Under the circumstances, it is recommended the every effort be made to resist the Commission’s blatantly illegal actions by the following means: (1) Filing appropriate objections with the Commission itself and with the National Appeal Board whom the Commission has designated to hear this latest travesty of justice; (2) filing a writ of habeas corpus in Federal District Court at the earliest possible date; and (3) initiating appropriate legal proceedings to challenge the Commission’s repeated failure to comply with Freedom of Information Act requests for documents and papers that we believe will shed light on its improper political agenda.
II. Background Information
To the amazement of many familiar with the workings of the U.S. parole system, Veronza Bowers, Jr. has not been released from prison after serving his full sentence of thirty years plus what will be sixteen months of illegal detention by the time of his next hearing date. By notice of action dated June 14, 2005, the U.S. Parole Commission has “retarded” Veronza’s release date for a period not to exceed 60 days. This action was taken on the basis of a petition from the Attorney General to have the matter of his release on parole reconsidered by the National Appeals Board.
This memo explains the legal significance of this latest development and why we think it constitutes improper action on the part of the Commission. It also outlines actions we encourage Veronza’s supporters to take in our continuing effort to secure his release on parole.
a. First Release Date
Some background is needed to understand the legal significance of this latest twist in the road to parole: As many of you may know, Veronza had the legal right to be released on what is known as “mandatory parole” since April 7, 2004 because the Parole Commission failed to find, by that date, that (1) there was competent evidence he was likely to commit crimes if upon release, or (2) he had frequently violated the rules of the prison system or (3) committed serious violations of prison rules during his incarceration. Only making one of these three findings could the Commission lawfully deny him parole as of that date. What happened instead was that only a few hours before Veronza was to be released on April 7th of last year, the Commission ordered the Bureau of Prisons to cancel his parole and hold him in prison indefinitely. This order was made without any explanation, justification or finding whatsoever.
b. Writ Proceedings Before Judge William T. Hodges
On October 26, 2004, Federal Judge
William Terrell Hodges of the Middle District of Florida ruled on a writ of
habeas corpus brought on Veronza’s behalf
by attorney Todd Scher. After careful consideration, Judge Hodges ordered the
Commission to hold a hearing within 60 days and release Veronza on mandatory
parole if, at the conclusion of that hearing, there was no competent evidence
to support one of the above three findings. Judge Hodges is a distinguished
jurist who has been a federal judge for over 30 years and this year’s
recipient of the Devitt Distinguished Service to Justice Award. The Devitt
Award honors the career of a federal judge of national stature whose decisions
are characterized by wisdom, humanity and commitment to the rule of law.
The hearing ordered by Judge Hodges was held on December 21, 2004. Evidence presented included the testimony of Mr. Hans H. Selvog, a nationally-recognized criminologist and Clinical Director of the National Center of Institutions and Alternatives in Alexandria, Virginia. Mr. Selvog administered a battery of psychological tests on Veronza designed to assess his suitability for parole and likelihood of success in adapting to life outside of prison. It was his expert opinion that Veronza is normal and socially well-adjusted with no criminal disposition whatsoever and, therefore, an excellent candidate for parole.
c. Second Release Date
At the conclusion of the December hearing, examiner Rob Haworth ruled that Veronza was eligible for mandatory parole and recommended that he be released from prison on February 18, 2005. At this hearing, Mr. Haworth commented that he considered Veronza to be one of the best candidates for parole he had ever encountered. In early January, a single Commissioner, Cranston J. Mitchell, ordered Veronza’s release on parole based on Mr. Haworth’s findings and recommendations. It appeared to us that the Commission was finally accepting its legally-mandated duty to act in a manner consistent with the law and that Veronza would be released on parole, albeit more than 10 month after his statutory release date of April 7, 2004. We soon learned that this assumption was wrong.
On February 18, 2005, approximately 15 minutes before Veronza was scheduled to be released from prison, the Commission notified the warden at the Coleman Correctional Facility that his parole order had been rescinded and the entire five-member Commission would be convened to reconsider his case. This 11th hour order to have his parole reconsidered by the entire Commission was made solely on the basis of unsupported, spurious allegations by the victim’s widow and members of law enforcement acting through an organization called the Fraternal Order of Police (FOP). Their petition to the Commission was based, in part, on allegations that Veronza had committed numerous violations of prison rules during his incarceration including arranging two contract murders. Needless to say, neither facts or evidence of any kinds were introduced in support of these patently false accusations.
The matter of the rehearing was granted without notice to Veronza’s legal team and was issued by the Commission ex parte, (i.e. his attorneys were not permitted to appear before the Commission to oppose the request for rehearing). Alan Chaset, head of the legal team, made our objections know through letters and phone calls to the Commission. Repeated Freedom of Information Act (FOIA) requests for copies of the documents relied on by the Commission in granting the rehearing have been largely ignored, as have been our repeated objections to the entire proceeding.
d. Third Release Date
As part of the rehearing process, another hearing examiner, Mr. Howard, was appointed to review the factual allegations of the petitioners and to allow Veronza and his attorney an opportunity to respond to them. On March 21, 2005, Mr. Howard conducted a hearing at the Coleman Correctional Facility and made the same recommendation that Mr. Haworth had made in December: Because there is no credible evidence to support any one of the findings necessary to deny Veronza mandatory parole, he is eligible for and should be released on parole. Mr. Howard took Veronza aside after the conclusion of the hearing to wish him the best of luck in his efforts to gain release.
Between March 21, 2005 and May 16, 2005, the Parole Commission, exercising what is referred to as “original jurisdiction”, reviewed the Mr. Howard’s recommendations. This meant that the entire five-member Commission would be convened to reconsider the matter of Veronza’s right to mandatory parole that had been previously decided by a single Commissioner, Mr. Mitchell.
On May 16, 2004, the Commission issued its decision affirming Veronza’s right to mandatory parole based on the following vote: two Commissioners in favor, two opposed and one abstaining. Since the law clearly places the burden of proof on the Commission, anything less than a majority vote supporting one of the required findings meant that Veronza was entitled to be released on mandatory parole as ordered by Judge Hodges. Accordingly, June 21, 2005 was established as his new release date. However, like all other past dates, this too proved to be more fiction than fact.
III. Most Recent Denial of Parole by the Commission
On June 14, 2005 Veronza’s most recent release date was rescinded by the Commission acting again without notice to his attorneys and without affording him or them an opportunity to object. This time, the Commission’s decision was based on a request by the United States Attorney General Alberto Gonzales that the National Appeals Board reconsider the Commission’s May 16, 2005 original jurisdiction decision.
a. National Appeal Board
We need here to clarify exactly what constitutes the National Appeals Board. By statute, [18 USC 4204(a)(5)], the Chairman of the U.S. Parole Commission is authorized to appoint three Commissioners to a National Appeals Board. That Board, once constituted, is authorized to review the following decisions: (1) A decision by a single Commissioner granting or denying parole may be reviewed by the Commission itself or the Commission may refer the matter to the National Appeals Board for review, provided “any such decision so reviewed must be reaffirmed, modified or reversed within thirty days of the date the decision is rendered” [18 USC 4203(c)(4)]; (2) Any decision adverse to a parole may be appealed by the parolee to the National Appeals Board [18 USC 4215(a)]; and (3) A decision of a single regional commissioner “upon the written request of the Attorney General filed not later than thirty days following the decision” shall be reviewed by the National Appeals Board within sixty days of the receipt of the Attorney General's request (18 USC 4215(c)) [18 USC 4215(c)].
b. Basis of Objections to the Commission’s Recent Action
Any review by the National Appeals Board of the original jurisdiction decision of the Commission in this case is improper for the following reasons: (1) The statute granting the National Appeals Board authority to act on a request for review by the Attorney General, authorizes such review only in the case of a decision by single regional, as opposed to a national, Commissioner and there was no such decision in this case; (2) The Commission itself has authority to refer the decision of a single national Commissioner to the National Appeals Board, however, it must do so within 30 days of the date of that decision. In Veronza’s case, it has been more than 5 months since Commissioner Mitchell issued his decision in this matter; (3) Commissioner Mitchell’s decision was vacated by the Commission when it exercised original jurisdiction to consider the matter of Veronza’s right to mandatory parole. Under 18 USC 4203(c)(4), the Commission had authority to (1) conduct an original jurisdiction review the decision itself or (2) refer the matter to the National Appeals Board for review. The Commission elected to conduct the review itself and there is no authority whatsoever for a second review by the National Appeals Board.
We consider the latest action by the Commission granting the Attorney General a hearing before the National Appeals Board to be without a proper basis in law. There is no statutory authority whatsoever for the three members of the Commission acting as the National Appeals Board to review the decision of the entire Commission in this matter. It is our position that the original jurisdiction decision by the Commission constituted final agency action and any further action taken in this matter violates due process.
We are recently informed
that the Commission intends to publish “emergency
rules” in the federal register in an effort to address the unprecedented
nature of the Attorney General’s request for and its decision to grant
a hearing in this matter. The absence of any proper legal basis for the Commission’s
actions and its attempt to draft rules at this late date to justify such actions
is a further violation of Veronza’s rights of due process.
What we find most objectionable in this case is the obvious politization of what is supposed to be an objective and impartial administrative process. This is occurring because of the unwillingness of the Commission to stand firmly behind the rule of law in the face of pressure from the Fraternal Order of Police and now the administration acting, we contend, improperly through the Attorney General. We see the Attorney General’s intervention as illegal, unprecedented and pandering to the political agenda of his administration’s constituents. It has nothing whatsoever to do with the merits of Veronza’s case. The Commission, in allowing this request to go forward, has acted once again in a manner that evidences an arbitrary and capricious disregard for Veronza’s legal right to be paroled—a right that will be nearly sixteen months past due when his newest release date, August 21, 2005, comes. . . and goes. . . as it has each time in the past.
IV. Recommended Actions
It is imperative that this latest impropriety by the Commission be addressed immediately on three fronts: First, in the pending proceedings before the National Appeals Board; second, through court action in the form of a writ of habeas corpus; and third, by confronting the Commission under the Freedom of Information Act with its refusal to comply with FOIA requests made by Veronza’s attorneys.
We will continue to press the U.S. Parole Commission and the National Appeals Board with our objections to its arbitrary and repeated denial of Veronza’s right to mandatory parole, most recently by granting the Attorney General a hearing in this matter at this late date. We also recommend that a writ of habeas corpus or other appropriate petition be filed with Judge Hodges as soon as possible, given the fact that there is no legal basis for the Commission to create, on its own initiative and without any statutory authority, the pending review by the National Appeals Board. It will be important to lay before this eminent jurist the Commission’s flagrant violation of his previous ruling in this matter.
This most recent setback has not lessened our commitment to obtain Veronza’s release on parole at the earliest possible date. To accomplish this, however, we need the continuing involvement of his family, friends and supporters. In this regard, we recommend that you consider taking one or more of the following three actions:
(1) Stay involved: Write letters to the U.S. Parole Commission, the Attorney General and the National Appeals Board. It is very important to make your voice heard in this matter. Emphasize Veronza’s excellent record in prison and unquestionable legal entitlement to parole.
U.S. Parole Commission
5550 Friendship Boulevard, Suite 420
Chevy Chase, MD 20815-7286
TEL.: (301) 492-5990 FAX: (301) 492-6694
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530-0001
TEL.: (202) 353-1555 E-MAIL: AskJOJ@usdoj.gov
(2) Stay involved: Check Veronza’s
web site for action bulletins and updates on his case.
Do whatever you can to help. You input, ideas and suggestions are welcome.
(3) (3) Stay involved: Continue your generous financial support. Contributions
to the Veronza Bowers, Jr. Legal Defense Fund make it possible for all of
us to play an important role in correcting this injustice and winning his release