Seventh Circuit Clarifies Calculation of Presumptive Parole Date for Federal Prisoner Sentenced Under Pre-1987 Law
by Anthony W. Accurso
In a decision reached on December 6, 2021, the U.S. Court of Appeals for the Seventh Circuit clarified calculation of the presumptive parole release date for a federal prisoner sentenced to several consecutive sentences, including a term of “life,” under pre-1987 sentencing law.
For murdering two deputy U.S. Marshals, Yorie Von Kahl was sentenced in 1983 to a term of imprisonment which, for simplicity’s sake, the Court described as “a life sentence, plus consecutive terms of ten and five [years].” Importantly, his sentence was handed down before the 1987 overhaul of federal sentencing, which eliminated parole. So Von Kahl is eligible for parole under the statute in effect at the time, the Parole Commission and Reorganization Act of 1976.
The federal Bureau of Prisons (BOP), at an interim parole hearing in 1987, calculated Von Kahl’s release date to be February 12, 2013. The Parole Commission accepted this, noting that “[o]n his life plus 15-year sentence, Petitioner can serve at most 30 years which [BOP] calculates to be the two-thirds point of his aggregate term.”
But the old statute also provided the Parole Commission “shall not release such a prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.”
Von Kahl was not offered early parole after the Parole Commission considered the seriousness of his crimes. However, it could eventually release him, assuming he has largely abided by institution rules.
A few years after he was imprisoned, Von Kahl learned that BOP had recalculated his release date. It was now February 12, 2023—ten years later than initially determined. After numerous appeals of this recalculation to BOP, Von Kahl filed a pro se motion in 2018 under 28 U.S.C. § 2241 in federal court for the Central District of Illinois—he was being held at the Federal Correctional Institution in Pekin—arguing that BOP had improperly recalculated his release date and by doing so had usurped the Parole Commission’s authority.
His argument hinged on language in 18 U.S.C. § 4206(d) stating that “[a]ny prisoner, serving a sentence of five years or longer... shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier.”
In a ruling on January 29, 2019, the district court said that BOP’s calculation was unassailable and dismissed the complaint, a decision it was then persuaded to revisit only briefly before again declining to provide any relief on August 21, 2019. See: Kahl v. Kallis, 2019 U.S. Dist. LEXIS 141751 (C.D. Ill.).
Von Kahl appealed. The Seventh Circuit began by noting a legislative report that stated § 4206 “provides more liberal criteria for release on parole for prisoners with long sentences after they have completed two-thirds of any sentence or thirty years, whichever occurs first.” See: H.R. Conf. Rep. No. 98-838 (1976).
Under this interpretation of the law, Von Kahl argued that he should have been paroled on February 12, 2013, after serving 30 years in prison.
The Court, however, pointed to the next sentence in the report, which states that “[i]n calculating two-thirds of a term, all sentences imposed consecutively should be considered separately and the time on each sentence added together.”
Thus, the Court calculated that Von Kahl’s total term was 60 years—45 years for his life term, per the pre-1987 statute, plus his additional 10- and 5-year terms—and that he must serve two-thirds or 40 years of the 60-year total, putting his presumptive release at February 12, 2023.
And that, the Court added, is not an automatic release. Rather, it is “a presumptive parole release date, not an outer limit to his custody.” Since it is still up to the Parole Commission to release, “[t]he outer limit is the end of his life,” the Court said and thus affirmed the district court’s decision. See: Von Kahl v. Segal, 19 F.4th 987 (7th Cir. 2021).
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Related legal case
Von Kahl v. Segal
|Cite||19 F.4th 987 (7th Cir. 2021)|
|Level||Court of Appeals|
|Appeals Court Edition||F.4th|