Paroling, Recommitting, and Supervising Federal Prisoners: Procedures for Attorney General Requests to Review Parole Decisions

DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

Paroling, Recommitting, and Supervising Federal Prisoners:

Procedures for Attorney General Requests to Review Parole Decisions

AGENCY: United States Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is adopting a procedure for the

handling of requests from the Attorney General under 18 U.S.C. 4215(c)

to review parole decisions by Regional Commissioners. Although

statutory law permits the Attorney General to request the National

Appeals Board to review any parole decision of a Regional Commissioner

within thirty days of the Regional Commissioner's decision, the

provision has been so infrequently used that the Commission has not

hitherto published any procedure for the handling of such requests. The

purpose of this publication is to set forth such a procedure, and to

ensure compliance with other statutory provisions regarding disclosure

of the documentary evidence that is relied upon by the Commission, in

the case of an Attorney General request that is accompanied by new

information.

EFFECTIVE DATE: September 7, 1994.

FOR FURTHER INFORMATION CONTACT: Richard K. Preston, Office of General

Counsel, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, Telephone

(301) 492-5959.

SUPPLEMENTARY INFORMATION: Federal parole laws remain in effect until

November 1, 1997, for prisoners and parolees who committed their crimes

prior to November 1, 1987, and whose sentences place them under the

jurisdiction of the U.S. Parole Commission. See Section 235(b) of the

Sentencing Reform Act of 1987, Public Law 98-473 (as amended) and 18

U.S.C. 4201 through 4218. Under 18 U.S.C. 4215(c), the Attorney General

may request the National Appeals Board of the U.S. Parole Commission to

review any decision of a Regional Commissioner, provided the Attorney

General's request is received within 30 days of the Regional

Commissioner's decision. The National Appeals Board then has 60 days to

reaffirm, modify, or reverse the Regional Commissioner's decision. This

statutory provision preserves the independence and integrity of the

U.S. Parole Commission by providing the Attorney General (and through

the Attorney General, the prosecutorial arm of the Department of

Justice) with a formal procedure for making objection to any parole

release or denial ordered by a Commissioner. Although enacted in 1976,

this procedure has been rarely employed, and the Commission has

hitherto not had occasion to publish any procedure for the handling of

such requests.

The Commission was recently confronted with a request from the

Attorney General under 18 U.S.C. 4215 that raised an important

procedural question. The request was accompanied by documentary

evidence not previously in the Commission's record. If the National

Appeals Board were to decide the case without observing the normal

right of a federal prisoner to have disclosure and an opportunity to

rebut adverse information, see 18 U.S.C. 4208, procedural fairness

would not be achieved. On the other hand, the 60-day period allowed by

4215(c) is not enough time for the statutory hearing process to be

carried out prior to review and decision by the National Appeals Board.

See 18 U.S.C. 4208.

Accordingly, the Commission has decided to adopt a procedure

whereby the National Appeals Board will consider the new information in

deciding to reaffirm, modify, or reverse the Regional Commissioner's

decision within the statutory 60-day period, but will also remand the

case for a new hearing if the decision (and the information) is adverse

to the prisoner. After a hearing with the opportunity for rebuttal, the

case will be returned to the National Appeals Board for a final

decision as to the disposition of the case. Although the final decision

of the National Appeals Board will be rendered after the 60-day

deadline has expired, the Commission has the statutory authority to

delegate to the National Appeals Board this additional decisionmaking

responsibility under 18 U.S.C. 4203. The legislative history of the

Commission's enabling statute makes it clear that the Commission was

intended by Congress to have significant freedom of choice as to the

powers to be delegated to the National Appeals Board. 2 U.S. Code Cong.

& Admin. News at 354-355 (1976).

This procedure will provide the Attorney General with the

unqualified right to have the National Appeals Board review a Regional

Commissioner's decision within the statutory deadline, while also

providing the prisoner with a meaningful opportunity to rebut any new

adverse information before the disposition of the case is deemed to be

final. This rule has not been published for notice and comment prior to

adoption because it is strictly a rule of procedure.

Executive Order 12866 and Regulatory Flexibility Statement

The U.S. Parole Commission has determined that this rule is not a

significant regulatory action for the purposes of Executive Order 12866

and the rule has therefore not been reviewed by the Office of

Management and Budget. The rule will not have a significant economic

impact upon a substantial number of small entities, within the meaning

of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

List of Subjects in 28 CFR Part 2

Administrative practice and procedure, probation and parole,

prisoners.

The Final Rule

Accordingly, the U.S. Parole Commission makes the following

amendment to 28 CFR Part 2:

PART 2--[AMENDED]

1. The authority citation for 28 CFR Part 2 continues to read as

follows:

Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

2. 28 CFR Part 2, Sec. 2.26 is amended by adding the following

paragraph (f):

Sec. 2.26 Appeal to National Appeals Board.

* * * * *

(f) Upon the written request of the Attorney General seeking review

of a decision of a Regional Commissioner, which is received within 30

days of such decision, the National Appeals Board shall reaffirm,

modify, or reverse the Regional Commissioner's decision within 60 days

of receipt of the Attorney General's request. The National Appeals

Board shall inform the Attorney General and the prisoner to whom the

decision applies in writing of its decision and the reasons therefor.

In the event the Attorney General submits new and significant

information that has not previously been disclosed to the prisoner

prior to a hearing under these rules, the National Appeals Board shall

act within 60 days to reaffirm, modify or reverse the Regional

Commissioner's decision, but shall also remand the case for a new

hearing if its decision is adverse to the prisoner. The prisoner shall

have disclosure of the new information, and the opportunity to dispute

that information under Sec. 2.19(c) of this part. Following the

hearing, the case shall be returned to the National Appeals Board,

together with a recommendation from the hearing examiner, to render a

final Commission decision as to the disposition of the case.

Dated: July 22, 1994.

Jasper R. Clay, Jr.,

Vice Chairman, U.S. Parole Commission.

[FR Doc. 94-19214 Filed 8-5-94; 8:45 am]

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