Paroling, Recommitting, and Supervising Federal Prisoners: Transfer Treaty Prisoners

DEPARTMENT OF JUSTICE

28 CFR Part 2

Paroling, Recommitting, and Supervising Federal Prisoners:

Transfer Treaty Prisoners

AGENCY: United States Parole Commission, Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is amending its regulations to

extend the time within which the Commission normally conducts a hearing

for a prisoner who is transferred to the United States to serve a

foreign sentence. The extension is from four months to six months. This

extension reflects the need for the preparation of postsentence reports

supported by translations of foreign court documents, and for

completion of other procedures (including a thorough prehearing

assessment by Commission staff) prior to conducting a hearing to

determine a release date and a period and conditions of supervised

release. The Commission is also amending its regulations to permit the

agency to render a determination without a hearing in the case of a

transferee who is given a release date by the Bureau of Prisons that is

less than six months from the date the transferee enters the United

States. These are cases in which the time is too short for the

Commission to prepare for, and conduct, an in-person hearing. The

Commission must nonetheless discharge its statutory responsibility to

place the transferee under a period and conditions of supervised

release before the transferee is released from prison.

DATES: November 18, 1996. Comments must be submitted by December 16,

1996.

ADDRESSES: Send comments to Office of General Counsel, U.S. Parole

Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.

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

Counsel, Telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: When the Commission originally established

its procedures for conducting transfer treaty hearings under 18 U.S.C.

4106A, four months from the date of the prisoner's arrival in the

United States appeared to be an adequate time to have a postsentence

report prepared, the views of the prisoner's representative submitted,

the case reviewed by Commission staff, and for the prisoner to be given

an in-person hearing. A more realistic time frame would now appear to

be six months. For those cases in which foreign court documents need to

be translated (a procedure that will increasingly be requested by the

Commission) an extended time frame is a practical necessity. This

extension will not prejudice those transferees who believe that they

are qualified to receive an early release date from the Commission,

because the amended rule will set forth the Commission's current

procedure permitting the transferee to waive a hearing in order to be

released from prison within 60 days.

A special problem is raised by transferees who, through the

application of jail credits and/or service credits from the Bureau of

Prisons, are scheduled for release from prison shortly after their

arrival in the United States. For example, some nations do not award

credit for jail time, which is awarded by the Bureau of Prisons in

accordance with U.S. law as soon as the transferee is received into

United States custody. The Commission has experienced a number of cases

wherein a release date is established by the Bureau of Prisons that

does not permit the Commission time to conduct an in-person hearing.

Yet, 18 U.S.C. 4106A requires the Commission to establish both a

release date and a period and conditions of supervised release.

Accordingly, the Commission is amending its regulation to permit it to

render this determination without conducting a hearing when the release

date established by the Bureau of Prisons falls too soon for a hearing

to be conducted under normal procedures. Even in cases wherein the

transferee's immediate release is required, the

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Bureau of Prisons will contact the Parole Commission for an emergency

determination prior to release of the prisoner, and a determination

will be entered the same day the prisoner is released. Otherwise, a

nunc pro tunc order will be entered.

In order to avoid minor disputes over the period and conditions of

supervised release becoming grounds for an appeal to a U.S. Court of

Appeals, the amended regulation permits the Commission to act upon a

petition for a more favorable decision within a 60-day deadline from

the date the determination is issued.

Public comment is expressly invited, especially from those who

practice before the Commission, both in regard to the specific

amendments published today, and in regard to any improvements or

modifications in the Commission's pre-hearing procedures in transfer

treaty cases that might be advisable.

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, 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.

The Interim Rule

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

to 28 CFR Part 2:

(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).

Sec. 2.62 [Amended]

(2) 28 CFR Part 2, Sec. 2.62(e) is revised to read as follows:

Sec. 2.62 Prisoners transferred pursuant to treaty.

* * * * *

(e) Special Transferee Hearing. A special transferee hearing shall

be conducted within 180 days from the transferee's entry into the

United States, or as soon as is practicable following completion of the

postsentence report along with any corrections or addendum to the

report and appointment of counsel for an indigent transferee.

(1) Waivers. The transferee may waive the special transferee

hearing on a form provided for that purpose, and the Commission may

either: (A) set a release date that falls within 60 days of receipt of

the waiver and establish a period and conditions of supervised release;

or (B) reject the waiver and schedule a hearing.

(2) Short-term Cases. In the case of a transferee who has less than

six months from the date of his entry into the United States to his

release date as calculated by the Bureau of Prisons under 18 U.S.C.

4105, the Commission may, without conducting a hearing or awaiting a

waiver, set a release date and a period and conditions of supervised

release. In such cases, the period of supervised release shall not

exceed the minimum necessary to satisfy the applicable sentencing

guideline (but may extend to the full-term of the foreign sentence if

such period is shorter than the minimum of applicable sentencing

guideline). The transferee may petition the Commission for a more

favorable decision within 60 days of the Commission's determination,

and the Commission may act upon the petition regardless of whether or

not the transferee has been released from prison.

* * * * *

Dated: October 10, 1996.

Edward F. Reilly, Jr.,

Chairman, U.S. Parole Commission.

[FR Doc. 96-26655 Filed 10-16-96; 8:45 am]

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