concurring and dissenting.
I concur in the majority’s affirmance of the judgment of conviction.
I write separately to dissent from the majority’s approval of the district court’s erroneous ruling that (1) a sentence of 210 years imprisonment for a second degree murder conviction lies within the applicable statutory limits of 18 U.S.C. § 1111(b) and (2) such a sentence can operate to postpone the defendant’s parole eligibility date decades past the time specified by Congress. Both decisions are in direct conflict with decisions of this court.1
There are two fundamental errors in the majority’s analysis. First, in interpreting § 1111(b) the majority fails to analyze the statutory structure in which Congress prescribed the penalties for first and second degree murder. The analomy created by the majority’s reasoning is that it approves a greater sentence for second degree murder than for the more heinous crime of first degree murder. This holding is not only contrary to the law of this circuit but contradicts a common sense application of the statute as well. Second, the majority misreads the parole eligibility requirements specified by Congress in 18 U.S.C. § 4205 and contradicts the precedent of this circuit by improperly attempting to overrule this court’s prior constructions of that statute. See, e.g., Edwards v. United States, 574 F.2d 937 (8th Cir.), cert. dismissed, 439 U.S. 1040, 99 S.Ct. 643, 58 L.Ed.2d 700 (1978).
The sentence
The federal murder statute reads in full: (a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabatoge, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto “without capital punishment”, in which event he shall be sentenced to imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
18 U.S.C.A. § 1111 (West 1984 & Supp. 1986).
In view of the Supreme Court’s abolition of the death penalty for federal crimes, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the penalty for first degree murder under § 1111(b) is limited to life imprisonment. For murder not falling within the definition of first degree murder, the penalty is “for any term of years or for life.” With all due respect for the majority’s attention to determining the intent of Congress from the statute’s literal language, I feel that it is rationally in*654complete when considering legislative intent to fail to analyze the entire statutory scheme of sentencing for murder.
In interpreting the federal murder statute, § llll(b)’s place in the statutory scheme is better understood by comparing the present language to the previous version of subsection (b). Before amendment in 1948, the statute stated that the sentence for second-degree murder may be “not less than ten years and may be imprisoned for life.” The 1948 amendment changed that phrase to “any term of years or life,” not to allow a greater penalty, but to conform to a uniform policy of omitting the minimum punishment. See Re-visor’s Note, 18 U.S.C.A. § 1111 (1984). Moreover, the majority’s reasoning attempts to overrule the recognition by this court and others that life imprisonment is the maximum penalty for second degree murder. United States v. Black Elk, 579 F.2d 49, 51 (8th Cir.1978) (per curiam) (emphasis added). Cf United States v. Means, 575 F.Supp. 1068,1072 (D.S.D.1983) (if juvenile offender was convicted and sentenced for second degree murder as an adult, “he would face a maximum penalty of life imprisonment.”) Under the majority’s interpretation, however, though the ceiling for punishing first degree murder is life imprisonment, for a second degree murder conviction there is no statutory limit on the length of punishment the individual can be compelled to serve.
At common law, the mandatory death penalty was the exclusive and specific sentence imposed on all convicted murderers, regardless of the underlying facts and circumstances surrounding the offense. See Gregg v. Georgia, 428 U.S. 153, 176-77, 96 S.Ct. 2909, 2926-27, 49 L.Ed.2d 859 (1976), (citations omitted). To alleviate the harshness of this rule, legislatures, beginning with the Pennsylvania legislature in 1794, divided murder into • statutory degrees and “confine[d] the mandatory death penalty to ‘murder of the first degree’ encompassing all ‘wilful, deliberate and premeditated’ killings.”2 Woodson v. North Carolina, 428 U.S. 280, 290, 96 S.Ct. 2978, 2984, 49 L.Ed.2d 944 (1976). This recognition that there is a distinction in the degree of culpability among murderers is preserved in 18 U.S.C. § 1111. As the Supreme Court has recognized:
it has long been a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intent of its makers.” * * * To read a substantial change in accepted practice into a revision of the Criminal Code without any support in the legislative history of that revision is insupportable. * * * “It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.”
Muniz v. Hoffman, Regional Director, National Labor Relations, 422 U.S. 454, 469-70, 95 S.Ct. 2178, 2186-87, 45 L.Ed.2d 319 (1975) (citations omitted). Thus, the majority ignores the fundamental rule that when construing a criminal statute and its words are capable of two constructions, that construction more favorable to the accused shall prevail. See United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973). Surely, in light of historical tradition and Congressional intent as expressed in the legislative history and statutory language, Congress never intended that a greater penalty could be meted out for second degree murder than for murder in the first degree.3
*655Further, the majority’s reliance on kidnapping cases, see United States v. O’Driscoll, 761 F.2d 589, 597-98 (10th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986); Giblin v. United States, 523 F.2d 42, 45 (8th Cir.1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1470, 47 L.Ed.2d 739 (1976), to support its interpretation of § llll(b)’s language is misplaced. The kidnapping statute which the above cases construe is not structured into degrees of punishment as is the crime of murder. See 18 U.S.C. § 1201; see also United States v. Fountain, 777 F.2d 345, 346 (7th Cir.1985).
Parole eligibility
The anomaly is heightened when one considers that a person convicted of first or second degree murder and sentenced to life or of any term of years is still automatically eligible for parole after ten years. 18 U.S.C. § 4205(a).4 See Edwards v. United States, 574 F.2d at 947 n. 2 (“Under the present law a prisoner serving a life sentence or a sentence of more than thirty years is eligible for parole consideration after the expiration of ten years.”) (Henley, J., concurring with Bright, J.; Stephenson, J. dissenting on different grounds). See also United States v. Fountain, 768 F.2d 790, 799 (7th Cir.1985) (citing U.S. Dept. of Justice, U.S. Parole Commission, Rules and Procedures Manual § 2.5 (Oct. 1, 1984); U.S. Dept, of Justice, Federal Prison System, Program Statement No. 5050.9, at p. 2 (May 21,1979). But see O’Driscoll, 761 F.2d at 598. Thus, to sentence a defendant for more than a 30 year term for any crime does not serve the purpose of deferring parole eligibility. Notwithstanding the fact that Rothgeb’s sentence for 210 years is to run consecutively with his life sentence, contrary to the district court’s ruling under § 4205(a) and consistent with the law of this circuit he should still be considered eligible for parole within 10 years.
I agree with the Seventh Circuit that the apparent purpose of the exception to § 4205(a) created in § 4205(b) is to allow release on parole before the earliest date allowed by subsection (a). See, Fountain, 768 F.2d at 799. The Tenth Circuit’s contrary construction of § 4205 in O’Driscoll ignores the overwhelming recognition that § 4205(b)’s purpose was to provide an offender the opportunity for early release, if deemed appropriate. See, e.g., Edwards, 574 F.2d at 941; Fountain, 768 F.2d at 799; United States v. Busic, 592 F.2d 13, 26 (2d Cir.1978) (“[A] reading of § 4205 as a whole indicates that Congress meant to vest the sentencing court with authority under § 4205(b) to designate that a person subject to a life sentence be eligible for parole earlier than the ten year maximum prescribed by § 4205(a).”)
It is axiomatic that courts should endeav- or to give statutory language that meaning which nutures the policies underlying the legislation. United States v. Sisson, 399 *656U.S. 267, 297, 90 S.Ct. 2117, 2133, 26 L.Ed.2d 608 (1970) (construing Criminal Appeals Act). It passes common understanding to find that Congress intended that the lesser offense of second degree murder could carry a sentence of double or treble the maximum that may be imposed for the greater offense of murder in the first degree. I agree that there exists the possibility that Rothgeb will never be granted parole. However, the time limits governing his eligibility for parole are expressly established by statute. To the extent the majority affirms a district court’s attempt to circumvent that language, I must dissent.
. A panel of this court, like a district court, is bound by prior Eighth Circuit decisions until those cases are overruled by this court sitting en banc. See, e.g., Yates v. United States, 753 F.2d 70, 71 (8th Cir.) (per curiam) (citations omitted), cert. denied, — U.S.-, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985).
. The preamble to the 1794 Pennsylvania statute stated: "And whereas the several offenses, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment." Pa.Laws of 1794 ch. 257, §§ 1, 2 (1794) (quoted in Model Penal Code § 210.2 n. 15 (1980)).
. This court’s recent decision, Stevens v. Ar-montrout, 787 F.2d 1282 (8th Cir.1986), is not inconsistent with this analysis. In Stevens, this court considered a 200 year sentence imposed for second degree murder under a statute worded similarly to 18 U.S.C. § 1111 and found that the sentence did not constitute cruel and unusual punishment in violation of the eighth and fourteenth amendments. As was noted in that opin*655ion, however, Missouri law imposes the death penalty for murder in the first degree. We are not presented here with the constitutional issue resolved by this court in Stevens. Compared to death, a sentence for a term of years is lesser punishment than that imposed for first degree murder and is consistent with the intent of the Missouri legislature. Moreover, the relevant Missouri parole statutes provide that prisoners serving life sentences or longer terms of years are eligible for parole after having served twelve years. See Stevens, 787 F.2d at pp. 1283-1284 (citations omitted).
. 18 U.S.C. § 4205 states, in full:
(a) Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.
(b) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may
(1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court, or
(2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may be released on parole at such time as the Commission may determine.