Paroling, Recommitting, and Supervising Federal Prisoners: Revision of the Salient Factor Score

DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

Paroling, Recommitting, and Supervising Federal Prisoners:

Revision of the Salient Factor Score

AGENCY: Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is revising the salient factor

score at 28 CFR 2.20. The salient factor score is an actuarial device

which the Commission uses to measure the risk that a prisoner will

violate parole. The revised Salient Factor Score will improve the

accuracy of the Commission's recidivism predictions in the case of

older prisoners. Under the revised score (to be known as SFS-95), the

Commission will add one point to the prisoner's total score if the

prisoner was 41 years of age or more at the commencement of the current

offense (or parole violation), provided the prisoner does not already

have the highest possible total score (10). The revision is made

appropriate by the fact that the Parole Commission has jurisdiction

over an aging population of prisoners and parolees whose crimes were

committed prior to November 1, 1987.

EFFECTIVE DATE: October 2, 1995.

FOR FURTHER INFORMATION CONTACT: Pamela A. Posch, Office of General

Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase,

[[Page 40093]]

Maryland 20815. Telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: A Notice of Proposed Rulemaking appeared in

the Federal Register for Tuesday, April 11, 1995 (60 FR 18378). Public

comment received with regard to the proposal was generally favorable.

The comment pointed out that the Commission was properly attempting to

capture the results of the agency's own research on recidivism and

``burnout'' among criminal offenders. In response to a comment that

suggested that the proposal was ambiguous concerning the date the

current offense was ``committed'', the Commission has revised the final

rule by specifying that the relevant date is the commencement of the

offense. Thus, a parolee who initiates an illegal narcotics

distribution conspiracy at age 39, and who continues that offense

behavior after reaching 41 years of age, is not to be given the

additional point required by the revised salient factor score. However,

a parolee who committed his original offense at age 35, and who is

returned to prison for a parole violation commenced after age 41,

receives the additional point when his score is recalculated at his

revocation hearing under 28 CFR 2.21(b).

The public comment also pointed out that the Commission's original

research focused on age at release as opposed to the age at which the

offense was committed, and suggested that the age of release should be

used in the revised score. This suggestion is not practical. Using age

at last release from prison would be too restrictive, and ``age at

release'' on the current period of imprisonment is the result of

applying the guidelines in the first instance.

Moreover, the Bureau of Prisons recently validated SFS-95 on a 1987

releasee sample (n=1205), using age at commencement of the instant

offense. Using this criterion, the revised salient factor score was

consistent with the original research, and displayed a high degree of

predictive accuracy. (The original research was done in 1984 with

research samples from 1970-72 (n=3,954) and 1978 (n=2,333).) The Mean

Cost Rating in the new study increased from .54 to .56 (the highest

recorded for a recidivism prediction device that has been subjected to

validation) and the point biserial correlation coefficient increased

from .47 to .48. Approximately 5% of the prisoners in this sample

received an improved parole prognosis category placement as compared

with the existing version of the salient factor score (SFS-81). The

Commission expects that these results will be reflected in future

parole decisionmaking.

Moreover, the revised salient factor score improves upon the

existing score by giving the Commission the equivalent of a ``rate'' of

criminality over a prisoner's entire career. This permits an assessment

of the current momentum of the prisoner's criminal career, leading to a

better prediction of the prisoner's future behavior if released on

parole. For example, the Parole Commission is enabled to determine that

a 50 year old defendant with 3 prior convictions and commitments over a

26-year career may be a better parole risk than a 25 year old defendant

who has 2 prior convictions and commitments over a 6-year career. Both

age and the rate of criminal conduct (over the length of his career)

are factors that work in the older offender's favor, despite his more

serious record. The Commission thus avoids the waste of taxpayer

dollars that can result when imprisonment decisions fail to account for

the probability that the current offense will turn out to be the last

in an aging offender's lifetime.

In sum, the revised salient factor score permits the Commission to

account for the affect of the aging process on each prisoner's

prospects for committing further crimes after release from prison. At

the present time, the average age of prisoners under the Commission's

jurisdiction is 43, a reflection of the fact that the Parole

Commission's jurisdiction is limited to offenders whose crimes were

committed prior to November 1, 1987. (See Section 235 of the Sentencing

Reform Act of 1984, which appears as an Editorial Note to 18 U.S.C.

3551.) Thus, it is increasingly appropriate for the Commission to

revise the salient factor score at this time. This decision accords

with the intent of Congress that the Parole Commission should ``* * *

continue to refine both the criteria which are used [to judge the

probability that an offender will commit a new offense] and the means

for obtaining the information used therein.'' 2 U.S. Code Cong. &

Admin. News at 359 (1976).

Implementation

The revised salient factor score (SFS-95) will be applied at

initial parole hearings and revocation hearings held on or after

October 2, 1995. It will be applied retroactively to prisoners who have

already been considered for parole, or reparole, at the next scheduled

statutory interim hearing under 28 CFR 2.14. If the prisoner's

guideline range is reduced through application of SFS-95, the

Commission will render a new parole decision. In some cases, individual

factors may warrant a decision to depart upward from the reduced

guideline range on the ground that the prisoner is a poorer parole risk

than SFS-95 indicates. For example, certain types of organized crime

members may be expected to continue their criminal careers despite

advancing age. The Commission will also apply SFS-95 in any other type

of hearing wherein the length of the prisoner's incarceration is a

function of the prisoner's current parole prognosis. This would not be

the case, for example, at a hearing under 28 CFR 2.34, wherein the

length of the prisoner's incarceration is determined by the need to

sanction institutional misconduct.

Executive Order 12866 and Regulatory Flexibility Statement

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

significant rule within the meaning of Executive Order 12866, and the

rule has, accordingly, 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.

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

amendment to 28 CFR part 2:

PART 2--[AMENDED]

The Amendment

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. 2.20 is amended by adding a new Item G to

the Salient Factor Scoring Manual, to read as follows:

Sec. 2.20 Paroling Policy Guidelines: Statement of general policy.

* * * * *

Salient Factor Scoring Manual

* * * * *

Item G. Older Offenders

G.1 Score 1 if the offender was 41 years of age or more at the

commencement of the current offense and the total score from Items

A-F is 9 or less.

G.2 Score 0 if the offender was less than 41 years of age at

the commencement of the

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current offense or if the total score from Items A-F is 10.

* * * * *

Special Instructions--Federal Probation Violators

Item G Use the age at commencement of the probation violation,

not the original offense.

* * * * *

Special Instructions--Federal Parole Violators

* * * * *

Item G Use the age at commencement of the new criminal/parole

violation behavior.

* * * * *

Special Instructions--Federal Confinement/Escape Status Violators With

New Criminal Behavior in the Community

* * * * *

Item G Use the age at commencement of the confinement/escape

status violation.

* * * * *

Dated: July 26, 1995.

Edward F. Reilly, Jr.,

Chairman, U.S. Parole Commission.

[FR Doc. 95-19312 Filed 8-4-95; 8:45 am]

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