Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 524 and 550

[BOP-1070-I]

RIN 1120-AA66

Drug Abuse Treatment and Intensive Confinement Center Programs:

Early Release Consideration

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: In this document, the Bureau of Prisons is revising its rule

on Drug Abuse Treatment Programs which allows for consideration of

early release of eligible inmates who complete a residential drug abuse

treatment program. The Bureau of Prisons is revising the rules with

respect to the criteria for receiving a sentence reduction and also

with respect to the authority of the Community Corrections Regional

Administrator to adjust the presumptive release date for an inmate in a

community-based program. The amendment is intended to provide for

adequate drug treatment transitional programs and to demonstrate more

clearly the discretion granted to the Director of the Bureau of Prisons

under 18 U.S.C. 3621(e) by listing the criteria that would preclude an

inmate from receiving a sentence reduction as determined by the

Director of the Bureau of Prisons. Criteria for possible sentence

reduction under the intensive confinement center program are being

modified in a similar manner as a conforming amendment.

DATES: Effective October 9, 1997. Comments are due December 15, 1997.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons,

HOLC Room 754, 320 First Street, NW., Washington, D.C. 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is further amending

its regulations on Drug Abuse Treatment Programs (28 CFR part 550,

subpart F). An interim rule on this subject, which implemented Section

32001 of the Violent Crime Control and Law Enforcement Act of 1994

(codified at 18 U.S.C. 3621(e)), was published in the Federal Register

on May 25, 1995 (60 FR 27692) and was amended on May 17, 1996 (61 FR

25122). Comments received on these previous interim rules will be

addressed in a separate document when the rules are finalized.

The interim rule published on May 25, 1995, attempted to define the

term ``crime of violence'' pursuant to 18 U.S.C. 924(c)(3). Because of

differences in application of case law among the various Federal

courts, a few crimes would not be clearly covered by the Bureau's

definition. This interim rule avoids this complication by using the

discretion allotted to the Director of the Bureau of Prisons in

granting a sentence reduction to exclude inmates whose current offense

is a felony (a) that has as an element, the actual, attempted, or

threatened use of physical force against the person or property of

another, or (b) that involved the carrying, possession, or use of a

firearm or other dangerous weapon or explosives (including any

explosive material or explosive device), or (c) that by its nature or

conduct, presents a serious potential risk of physical force against

the person or property of another, or (d) that by its nature or conduct

involves sexual abuse offenses committed upon children.

As a conforming amendment, the criteria for possible sentence

reduction under the intensive confinement center program (28 CFR 524,

subpart D) pertaining to crimes of violence (Sec. 524.31(a)(3)) are

being modified in a similar manner.

Under Sec. 550.58(c)(3), the Community Corrections Regional

Administrator had the authority to retard or disallow any portion of

the maximum 12 month reduction for an inmate in a community-based

program based upon a disciplinary finding or based on program needs

(for example, the inmate has not established an adequate release plan).

This paragraph is being revised to specify that if an inmate cannot

fulfill his or her community-based treatment obligations by the

presumptive release date, the Community Corrections Regional

Administrator may adjust the presumptive release date by the minimum

amount of time necessary to fulfill treatment obligations. The

Community Corrections Regional Administrator, as the Bureau official

responsible for monitoring the quality of the treatment programs

available in community-based programs, makes determinations as to the

inmate's completion of applicable transitional services. Such

determinations are responsive to the treatment needs of the inmate and

are not intended to be punitive. Disciplinary findings which can result

in an inmate's being precluded from receiving a sentence reduction (see

redesignated Sec. 550.58(a) (2)(iv) and (3)(ii)) remain as a

determination of the Discipline Hearing Officer.

The Bureau is publishing this change as an interim rule in order to

solicit public comment while continuing to provide consideration for

early release to qualified inmates. Interested persons may participate

in this interim rulemaking by submitting data, views, or arguments in

writing to the Rules Unit, Office of General Counsel, Federal Bureau of

Prisons, 320 First Street, NW., HOLC Room 754, Washington, D.C. 20534.

Comments received during the comment period will be considered before

final action is taken. Comments received after the expiration of the

comment period will be considered to the extent practicable. All

comments received remain on file for public inspection at the above

address.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of E.O. 12866, and

accordingly this rule was not reviewed by the Office of Management and

Budget. After review of the law and regulations, the Director, Bureau

of Prisons has certified that this rule, for the purpose of the

Regulatory Flexibility Act (5 U.S.C. Sec. 601, et seq.), does not have

a significant impact on a substantial number of small entities within

the meaning of the Act. Because this rule pertains to correctional

management of persons committed to the custody of the Attorney General

or the Director of the Bureau of Prisons, its economic impact is

limited to the Bureau's appropriated funds.

List of Subjects

28 CFR Part 524

Prisoners.

28 CFR Part 550

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), part 524 in subchapter B of 28

CFR, chapter V, and part 550 in subchapter C of 28 CFR, chapter V are

amended as set forth below.

SUBCHAPTER B--INMATE ADMISSION, CLASSIFICATION, AND TRANSFER

PART 524--CLASSIFICATION OF INMATES

1. The authority citation for 28 CFR part 524 is revised to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624,

4001, 4042, 4046,

[[Page 53691]]

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to

offenses committed after that date), 5039; 21 U.S.C. 848; 28 U.S.C.

509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 U.S.C. Chapter

223); 28 CFR 0.95-0.99.

2. In Sec. 524.31, paragraph (a)(3) is revised to read as follows:

Sec. 524.31 Eligibility and placement.

(a) * * *

(3) Is not serving a term of imprisonment for a crime of violence

or a felony offense:

(i) That has as an element, the actual, attempted, or threatened

use of physical force against the person or property of another, or

(ii) That involved the carrying, possession, or use of a firearm or

other dangerous weapon or explosives (including any explosive material

or explosive device), or

(iii) That by its nature or conduct, presents a serious potential

risk of physical force against the person or property of another, or

(iv) That by its nature or conduct involves sexual abuse offenses

committed upon children.

* * * * *

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 550--DRUG PROGRAMS

3. The authority citation for 28 CFR part 550 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984

as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510;

28 CFR 0.95-0.99.

4. In Sec. 550.58, the introductory text, paragraph (a) heading,

and paragraph (c)(3) are revised, paragraphs (a)(1) and (a)(2) are

redesignated as paragraphs (a)(2) and (a)(3), and a new paragraph

(a)(1) is added to read as follows:

Sec. 550.58 Consideration for early release.

An inmate who was sentenced to a term of imprisonment pursuant to

the provisions of 18 U.S.C. Chapter 227, Subchapter D for a nonviolent

offense, and who is determined to have a substance abuse problem, and

successfully completes a residential drug abuse treatment program

during his or her current commitment may be eligible, in accordance

with paragraph (a) of this section, for early release by a period not

to exceed 12 months.

(a) Additional early release criteria. (1) As an exercise of the

discretion vested in the Director of the Federal Bureau of Prisons, the

following categories of inmates are not eligible for early release:

(i) INS detainees;

(ii) Pretrial inmates;

(iii) Contractual boarders (for example, D.C., State, or military

inmates);

(iv) Inmates who have a prior felony or misdemeanor conviction for

homicide, forcible rape, robbery, or aggravated assault, or child

sexual abuse offenses;

(v) Inmates who are not eligible for participation in a community-

based program as determined by the Warden on the basis of his or her

professional discretion;

(vi) Inmates whose current offense is a felony:

(A) That has as an element, the actual, attempted, or threatened

use of physical force against the person or property of another, or

(B) That involved the carrying, possession, or use of a firearm or

other dangerous weapon or explosives (including any explosive material

or explosive device), or

(C) That by its nature or conduct, presents a serious potential

risk of physical force against the person or property of another, or

(D) That by its nature or conduct involves sexual abuse offenses

committed upon children.

* * * * *

(c) * * *

(3) If the inmate cannot fulfill his or her community-based

treatment obligations by the presumptive release date, the Community

Corrections Regional Administrator may adjust the presumptive release

date by the minimum amount of time necessary to allow for fulfillment

of the treatment obligations.

[FR Doc. 97-27252 Filed 10-9-97; 2:48 pm]

BILLING CODE 4410-05-P