concurring.
If I were free to do so, I would dispose of this case on the basis of the dissenting opinion in Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978). I am not, however, free to do so because that case is an en banc decision of this court, and I have no reason to believe that the majority of active judges of this court would deviate from the position taken in that case, notwithstanding that the First and Second Circuits have reached the opposite result. I do think that Judge Cudahy’s opinion in the present cases represents a reasonable application of the established position of this circuit on the issue, particularly in view of facts developed in the present cases which were not brought out in Lono. I, therefore, concur in Judge Cudahy’s opinion.
In view of the very real problem experienced by some smaller states, as demonstrated by these cases, of coping with high-risk prisoners, in the interest of public safety it appears imperative to me that an early solution of the problem presented by transfers- from state to federal institutions should be reached.
That solution could be reached under the existing statute by the grant of certiorari by the Supreme Court, in view of the fact that there is a split between circuits. For some reason, the Department of Justice did not choose to pursue certiorari on the Lono case. Irrespective of whether the Department does so in this case, there are intervening parties in the present litigation who have a vital interest in the subject and who may want to follow through in an attempt to secure a definitive opinion.
The other source of a solution, of course, is the Congress. That body, according to Judge Cudahy’s opinion, has the matter of revision before it. I note, however, that this consideration is a part of a much larger subject, a comprehensive revision of the United States Criminal Code. To the extent that Judge Cudahy’s marginal note expresses optimism for an early amendment of the legislation, I find myself unable to share in the expression. I particularly note the provision in the House version. I think the House Committee’s observation that it does not wish to take a position in the controversy between the circuits is particularly distressing. The sole controversy between the circuits arises from the endeavor of the courts to determine what Congress meant in the existing statute. Congress now has a chance to make it clear what it means in the future and, in doing so, it is not taking anyone’s side in a controversy. It is merely engaging, as is its particular governmental responsibility, in establishing future policy applicable to certain federal institutions.