Paroling, Recommitting, and Supervising Federal Prisoners:Prisoners Serving Sentences Under the District of Columbia Code

DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

Paroling, Recommitting, and Supervising Federal

Prisoners:Prisoners Serving Sentences Under the District of Columbia

Code

AGENCY: United States Parole Commission, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is incorporating into the Code of

Federal Regulations, in amended and supplemented form, the regulations

of the District of Columbia that govern the paroling jurisdiction that

will be assumed by the U.S. Parole Commission on August 5, 1998. The

paroling authority of the District of Columbia Board of Parole will be

transferred to the U.S. Parole Commission under the National Capital

Revitalization and Self-Government Improvement Act of 1997, which

permits the Commission to amend and supplement the District's parole

regulations pursuant to federal rulemaking procedures.

DATES: Effective Date: August 5, 1998. Comments must be received by

December 1, 1998.

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

Maryland 20815, telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: Under Section 11231 of the National Capital

Revitalization and Self-Government Improvement Act of 1997 (Public Law

105-33) the U.S. Parole Commission is required, not later than August

5, 1998, to assume the jurisdiction and authority of the Board of

Parole of the District of Columbia to grant and deny parole, and to

impose conditions upon an order of parole, in the case of any

imprisoned felon who is eligible for parole or reparole under the

District of Columbia Code. The Act requires the Parole Commission to

exercise this authority pursuant to the parole laws and regulations of

the District of Columbia. However, it also gives the Parole Commission

the authority to amend or supplement any regulation interpreting or

implementing the relevant parole laws of the District of Columbia,

provided that the Commission adheres to the rulemaking requirements of

the Administrative Procedure Act, 5 U.S.C. 553, as applied to the

Commission by 18 U.S.C. 4218.

After an extensive review of the relevant regulations of the Board

of Parole of the District of Columbia, as currently set forth in the

District of Columbia Code of Municipal Regulations, the Commission

decided to republish them with appropriate revisions. The Commission

decided not to leave these regulations in the D.C. Code of Municipal

Regulations because the Revitalization Act makes parole for D.C. Code

felons a federal function, and rules promulgated by federal agencies

pursuant to the Administrative Procedure Act are required to be

published in the Federal Register and the Code of Federal Regulations.

Notice of this proposed rulemaking was published at 63 FR 17771 (April

10, 1998). Notice of the proposed transfer of these regulations was

also published in 45 D.C. Register 2356 (April 17, 1998).

A complete set of regulations for District of Columbia felony

prisoners is therefore being incorporated into the Code of Federal

Regulations alongside the existing regulations that govern all other

criminal offenders who fall under the Commission's jurisdiction. The

regulations that govern the remaining functions of the Board of Parole

of the District of Columbia will continue to be set forth in the D.C.

Code of Municipal Regulations until the Commission assumes the

remaining functions of the Board with respect to felons, on or before

August 5, 2000.

The revised D.C. parole regulations that will take effect as

interim rules effective August 5, 1998, fall into three categories.

First, the Board of Parole's procedural regulations have been

amended and supplemented to clarify the procedures that the Commission

will follow in considering District of Columbia prisoners for parole.

The parole hearing and decisionmaking process will remain essentially

the same as that of the D.C. Board of Parole, but in many instances

modifications will promote both increased fairness and administrative

efficiency in the discharge of this new function.

Second, other revisions reflect recently-enacted District of

Columbia laws, such as the Medical and Geriatric Parole Act, which were

not previously implemented through regulations.

Third, the Commission has supplemented the existing parole

guidelines of the Board of Parole by adopting an improved point score

system to replace the scoring system that was removed from the Board's

regulations by D.C. Law 10-255 (May 16, 1995). The continued use of

this point score system by the D.C. Board of Parole has resulted in a

high rate of upward departures from the guidelines. For example, in a

random sample of 100 cases decided by the D.C. Board of Parole in 1997,

the Commission found departures in more than half of the cases. Factors

cited by the Board to justify departures most often appear to involve

aspects of the prisoner's current offense or criminal history that

indicate a risk of violent recidivism. See, e.g., Ellis v. District of

Columbia, 84 F.3d 1413 (D.C. Cir. 1996), Smith v. Quick, 680 A.2d 396

(D.C. App. 1996), and McRae v. Hyman, 667 A.2d 1356 (D.C. App. 1995).

The guidelines set forth below retain the basic framework of the

Board's guidelines, but incorporate factors that would otherwise be

expected to result in decisions outside the guidelines. The Commission

intends this improved point score system to serve the Board's original

purpose of predicting violent crime and incapacitating offenders with a

high probability of serious recidivism. It is also intended to reduce

the potential for unwarranted disparity that can be produced by the

frequent exercise of unguided discretion.

In this regard, the Parole Commission undertook a research study to

identify factors related to current offense and criminal history that

can be empirically correlated with repeat violent crime. The research

was based on a statistical sampling of D.C. offenders released in 1992

(which provided a five-year follow-up period), as well as on

comparative samples from larger federal and Connecticut data bases. The

guideline table that is published at this time is based upon factors

that were confirmed by the research data as correlated with violent

recidivism. Whereas the current D.C. point score demonstrated a weak

association with violent recidivism, the score adopted by the

Commission at this time shows a significantly improved correlation.

Moreover, the Connecticut data produced results that were remarkably

consistent with the results obtained with the Commission's D.C. data.

In light of the research results, some factors were added to

Category II of the proposed score, and others were dropped from the

score as non-predictive. For example, distinguishing between ``high

level'' and ordinary violence in the offender's prior record was found

to reduce the predictive power of the score, as was the factor of

``multiple current offenses.'' Therefore, these factors were deleted.

Drug

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trafficking in the current offense (without possession of a firearm)

was also found to lower the prediction of violent recidivism, and was

therefore deleted.

On the other hand, the basic assumption that a violent current

offense predicts for future violence was confirmed, as was the

assumption that a violent prior record adds to the predictability of

future violence in such cases. The research also pointed to the

conclusion that a record of prior violent crime is predictive even if

the current offense did not involve violence, so this factor was added.

Firearm possession was also found to be strongly predictive, so this

item is retained from the original D.C. score. (The points assigned to

each factor in Category II of the score reflect that factor's

predictive strength relative to the other factors in that Category.)

Although the frequencies of extremely violent crimes (murder, rape,

etc.) proved too small to yield empirical research results, the

Commission decided that such cases present implied risk levels that

would either justify repeated departures, or the inclusion of the

relevant factors in the guideline system itself. The latter option was

chosen. What constitutes ``violent crime'' in the current offense has

therefore been given differentiation so that cases of ``high level''

violence receive appropriate point enhancements. This is consistent

with past D.C. practice. The Board of Parole's current point score

table assigns a one point enhancement for violence, regardless of the

nature and seriousness of the crime, notwithstanding the factors at 28

DCMR 204.18. Departures are therefore frequent for cases of ``unusual

cruelty to victims,'' which appears to correlate with ``high level

violence'' as defined by the Parole Commission in Category III of the

revised point score. See, e.g., Hall v. Henderson, 672 A.2d 1047 (D.C.

App. 1996).

Additionally, the research indicated that the predictive power of

the Salient Factor Score (SFS), which is currently used by both the

Parole Commission and the D.C. Board of Parole, would be significantly

enhanced by increasing the weight given to Item C (age of the

commencement of the current offense), from a maximum of 2 points to a

maximum of 3 points. The SFS is therefore revised to differentiate

better between offenders on the basis of their age at the commencement

of the current offense. Taken together, age at the commencement of the

current offense and the number of prior convictions and commitments

function to predict recidivism by providing a measure of the rate of

the offender's past criminal conduct. An additional adjustment in Item

C to the scoring of offenders with four prior commitments will further

refine the SFS and increase its predictive power. Finally, the

Commission has deleted Item F (heroin/opiate dependence), an item that

predicts recidivism by itself but which does not add to the predictive

power of the SFS once all the other items are taken into account. The

Commission will thus avoid the scoring problems associated with the

issue of heroin/opiate dependence (which are due to the inadequate

background information maintained on many D.C. prisoners). The SFS will

remain a ten-point score and the parole prognosis categories (as well

as the scores that define theses categories) will not be changed.

In sum, although some of the ``type of risk'' factors that indicate

a prisoner's potential for violent recidivism are given increased

weight in the new scoring system, this will render unnecessary the

unstructured discretionary departures that were frequently ordered by

the D.C. Board of Parole in the past to compensate for an inadequate

violence prediction (``type of risk'') scale. Moreover, increased

weight is given to institutional performance, both by permitting

program achievement to be balanced against any misconduct during the

same period, and by assigning an additional point to superior program

achievement. Positive achievement in prison programs, as well as

negative institutional behavior, will therefore continue to produce

significant adjustments to the ``total point score'' each time a

prisoner who has been denied parole appears for a reconsideration

hearing.

Finally, overcrowding in District prisons has long been a serious

concern. However, the Commission's research indicates that adherence to

the guidelines at Sec. 2.80 will not increase overall prison time or

produce more prison overcrowding. The rehearing guidelines at

Sec. 2.80(j) have been modified downward for prisoners with Base Point

Scores of 7-10 to help keep the estimated average prison time served by

D.C. prisoners within current levels. The Commission will continue to

study the available data to determine whether the continuance ranges at

Sec. 2.80(j) should be further adjusted to avoid any unintended impact

on the prison population, while ensuring that serious offenders will

serve periods of imprisonment that are adequate to protect the public

safety.

Explanatory Comments By Section

Comment to Sec. 2.70: This section sets forth the authority

assigned to the Parole Commission under the D.C. Revitalization Act and

carries forth the provisions of 28 DCMR 100 with two exceptions. First,

28 DCMR 100.10 was not retained because the statutory authority upon

which it was based has been repealed. Second, 28 DCMR 100.11 was not

retained because it is redundant with paragraph (b) (derived from 28

DCMR 100.2), which sets forth the Commission's authority regarding

committed youth offenders in a broader form. This proposed rule also

reflects a 1993 amendment to the D.C. Code regarding geriatric and

medical cases, and updates the references in 28 DCMR 100 regarding the

Youth Corrections Act to take into account the Youth Rehabilitation Act

Amendment of 1985.

Comment to Sec. 2.71: This rule carries forth the provisions of 28

DCMR 102 with two modifications. First, youth offenders will have to

complete a standard parole application form. Second, the rule provides

that initial hearings are to be scheduled, where practicable, at least

180 days before the prisoner's eligibility date. Current D.C. Parole

Board practice generally provides initial hearings about 60 days prior

to the prisoner's eligibility date. It is expected that, on August 5,

1998, there will be a significant backlog of parole applicants for whom

the 180 day deadline will have already passed. The Commission will hear

these prisoners on successive dockets until compliance with this rule

can be achieved.

Comment to Sec. 2.72: This rule carries forth the provisions of 28

DCMR 103 with the following changes. First, it adds a requirement that

the examiner discuss with the prisoner the pertinent file information.

This will ensure that the prisoner is informed of the main information

being considered by the Commission, and given an opportunity to

respond. Second, although the rule retains the D.C. prohibition on

representatives at parole hearings in District of Columbia facilities,

it allows a prisoner to have a representative at a parole hearing in a

federal facility, consistent with the procedure for federal prisoners.

The same applies to prehearing disclosure of file documents, which

likewise depends upon correctional staff resources that are not

available in District facilities. Third, although 28 DCMR 103 permits a

prisoner's supporters to visit the Board to discuss a case at any time,

the interim rule requires a prisoner's supporters to request an office

visit at least 30 days before the parole hearing so that their input

can be included in the record that the examiner will consider at the

hearing. Office visits at other times will be permitted only on a

showing of good

[[Page 39174]]

cause. Fourth, the rights of victims as set forth in a 1989 amendment

to D.C. law are spelled out and amplified. Victims of violent crimes

are given the right to appear at the parole hearing, and to submit

testimony or a written statement. Although current D.C. procedures

permit only a written statement, federal practice permits victims to

testify. See Phillips v. Brennan, 969 F.2d 384 (7th Cir. 1992) (victim

permitted to testify at parole hearing without presence of offender).

Office visits are also permitted for victims, subject to the same 30-

day notice requirement that applies to supporters. Fifth, the rule

follows federal law at 18 U.S.C. 4208(f) in allowing the prisoner to

obtain a copy of the tape recording of his parole hearing.

Comment to Sec. 2.73: This rule carries forth the statutory

criteria for parole contained in 28 DCMR 200. In addition, it explains

that the parole function for D.C. Code offenders rests on a premise

somewhat different from that of the federal parole guidelines. See

Cosgrove v. Thornburgh, 703 F. Supp. 995, 1004, n.6 (D.D.C. 1988). For

D.C. Code offenders, the revised guidelines in Sec. 2.80 of these rules

treat the minimum term of imprisonment imposed by the court as the

measure of basic accountability for the offense of conviction. Only in

unusual cases is the seriousness of the offense a basis for denial of

parole. The normal function of parole consideration is to determine

whether the prisoner would be ``a responsible citizen if he is returned

to the community'' and whether ``release on parole is consistent with

the public safety.'' See White v. Hyman, 647 A.2d 1175 (D.C. App.

1994). Hence, this provision embodies the Commission's decision to

maintain the existing purpose of parole for the District of Columbia.

Comment to Sec. 2.74: This is a new rule. It requires the issuance

of a statement of reasons for parole denial, a procedure not included

in current District of Columbia Parole Board procedures. Federal

practice under 18 U.S.C. 4206 is the model for this procedural reform,

as well as for the 21-day time period for issuing the decision.

Comment to Sec. 2.75: This rule carries forth the provisions of 28

DCMR 104, except that the policy of setting continuances for cases by

reference to the length of the prisoner's sentence is replaced by

reference to the new time ranges for rehearings that are set forth in

Sec. 2.80. In addition, the proposed rule prohibits the scheduling of a

reconsideration hearing more than five (5) years from the date of the

last hearing. At present, the D.C. Parole Board may order a

reconsideration hearing exceeding this limit if it departs from its

guidelines. Finally, the proposed rule authorizes special

reconsideration hearings for new and significant information, and

spells out the continuing authority of the D.C. Parole Board to revoke

parole and set rehearing dates.

Comment to Sec. 2.76: This rule carries forth the provisions of 28

DCMR 201 regarding applications for a reduction of minimum term. In

addition, it sets forth the arrangement the Commission has with the

U.S. Attorney's Office regarding the presentation of applications for a

reduction in a minimum term to the Superior Court.

Comment to Sec. 2.77: This is a new rule that sets forth criteria

and procedures for implementing the medical parole provisions at D.C.

Code 24-261-64, 267.

Comment to Sec. 2.78: This is a new rule that sets forth criteria

and procedures for implementing the geriatric parole provisions at D.C.

Code 24-261, 263-64, 267.

Comment to Sec. 2.79: This rule carries forth the provisions of 28

DCMR 205 in a somewhat modified form to conform to the procedure set

forth at Sec. 2.6 of these rules. A minor substantive change is that

the Commission will consider the underlying circumstances of the

misconduct in setting a date for review hearing rather than set a

parole date that is contingent on the restoration of forfeited good

time by institutional officials.

Comment to Sec. 2.80: This section carries forth the provisions of

28 DCMR 204 in modified form. This revision of the D.C. Board's

guideline system retains its fundamental three-part structure (the

salient factor score, the total point score, and the grant/denial

policy). The guideline system continues to serve as a measurement of

both the degree and seriousness of the risk to the public safety

presented in each case. The policy of permitting parole to be granted

at initial hearings for those who merit 0-2 points on the ``total point

score,'' and permitting parole to be granted at rehearings for those

who merit 0-3 points, is also retained. However, the relevant factors

listed in the point score as indicating ``seriousness of the risk''

have been revised substantially along with the number of points

assigned to each relevant factor. The purpose of the revisions is to

produce a score that better predicts the probability of violent

offenses, and that differentiates between ordinary and extremely

violent offenses (e.g., murder, rape, assault with serious bodily

injury). Thus, the revised score includes factors which appear to

indicate an increased probability that recidivism (if it occurs) will

be of a serious nature. At the same time, the possible points for

superior program achievement in prison also are increased.

The primary intent is to protect the public safety, and to capture

within the guidelines the many decisions that are now outside the

guidelines because of the D.C. Board's well-founded concerns about the

``seriousness of the risk.'' The Parole Commission itself has found it

necessary to depart from the D.C. parole guidelines based on the same

concerns. See Duckett v. U.S. Parole Commission, 795 F. Supp. 133 (M.D.

Pa. 1992) (current offenses involved multiple separate crimes of

violence not reflected by the point score).

The total point score thus revised permits (in the worst-case

scenario) a repeat offender to receive as many as 10 points. However,

point scores only go to this level if there are extraordinary

aggravating factors (e.g., current murder with an extensive prior

record of violent crimes) that would otherwise justify a guideline

departure. If the offender's past record is less extensive, the total

point score will be correspondingly lower and will permit parole based

on good behavior over a sufficient period of time in prison. What

constitutes a ``sufficient period of time in prison'' is determined by

the need to incapacitate the offender according to the risk level he or

she presents, as reflected in the Guidelines for Time to Rehearing at

Sec. 2.80(j).

Comment to Sec. 2.81: This rule carries forth the provisions of 28

DCMR 202.2, but follows federal practice by permitting an effective

date of parole up to 9 months in advance. The D.C. Parole Board rule

does not specify any time period. The rule also provides that parole

dates will be set no more than 6 months in advance if placement in a

halfway house is not required. This policy will leave the Commission

with the flexibility to ensure adequate release planning before any

prisoner is released on parole. Difficulties in determining the

adequacy of release plans, in the availability of necessary halfway

house resources, and in the adequacy of basic supervision resources,

are presently serious issues that can impede the releases of many D.C.

Code prisoners.

Comment to Sec. 2.82: This rule carries forth the provisions of 28

DCMR 208 regarding release planning. Express authority is added for the

Commission to rescind a grant of parole if failure to produce an

acceptable release plan persuades the Commission that the

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release of the prisoner would lead to rapid failure in the community.

Comment to Sec. 2.83: This rule carries forth that part of 28 DCMR

209 that concerns release to other jurisdictions.

Comment to Sec. 2.84: This rule carries forth the provisions of 28

DCMR 207 pertaining to the conditions of parole.

Comment to Sec. 2.85: This section carries forth the provisions of

28 DCMR 207 regarding release on parole and specifies when a parole

becomes operative, based on 28 CFR Sec. 2.29(a).

Comment to Sec. 2.86: This rule carries forth the provisions of 28

DCMR 212.

Comment to Sec. 2.87: This rule supplements the District of

Columbia parole regulations by providing for the use of federal

reparole guidelines (in the absence of a new D.C. Code sentence). The

current parole regulations of the District of Columbia include

rehearing schedules for parole violators but do not provide policy

guidance for the substantive decision to grant or deny reparole.

Moreover, neither federal nor District of Columbia law mandates any

difference in the basic purposes served by revocation and reparole.

This rule will ensure that parole violators will receive consistent

decisions, and will know from the date of their first rehearing how

much time must be served to correct and sanction the parole failure.

Comment to Sec. 2.88: This carries forth the operative provisions

of 28 DCMR 101. It maintains the confidentiality of D.C. Board parole

files while conforming the regulations to federal parole practice under

the Privacy Act of 1974.

Comment to Sec. 2.89: This rule sets forth the provisions from Part

A of these rules that, except to the extent otherwise provided by law,

shall also apply to District of Columbia Code prisoners.

Comment to Sec. 2.90: This is a new rule that is necessary to

clarify the status of prior orders of the D.C. Board (parole grants,

denials, revocations, etc.) as of August 5, 1998. It maintains the

Commission's longstanding practice of implementing prior D.C. Board

orders when a D.C. Code offender enters federal jurisdiction, including

rehearing dates, unless duly reconsidered and changed. See Morgan v.

District of Columbia, 618 F. Supp. 754 (D.D.C. 1985).

The Public Comment

The D.C. Public Defender's Service and the D.C. Prisoners' Legal

Services Project argue that the proposed regulations will ``increase

the measure of punishment'' for D.C. offenders, and will therefore

violate the ex post facto clause. However, it was also acknowledged

that the D.C. Board of Parole does not always follow its own rules.

This acknowledgment, in effect, concedes the argument. Parole guideline

changes, especially those that incorporate factors that are used to

exceed the guidelines on a discretionary basis, do not offend the ex

post facto clause. See, e.g., Davis v. Henderson, 652 A.2d 634 (D.C.

App. 1995), Warren v. U.S. Parole Commission, 659 F.2d 183 (D.C. Cir.

1981), Inglese v. U.S. Parole Commission, 768 F.2d 932 (7th Cir. 1985),

and Yamamoto v. U.S. Parole Commission, 794 F.2d 1294 (8th Cir. 1986).

Moreover, the revised guidelines are intended only to structure the use

of paroling discretion in a more consistent manner, and not to reduce

the decisionmaker's authority to allow individual factors to determine

the final outcome in every case. The objective of the Commission is to

provide a rational, research-based framework for its decisions that is

based on a sample of actual past D.C. Board of Parole decisions.

Other contentions are that the Commission has no authority to

administer the Youth Rehabilitation Act (based on the proposition that

YRA prisoners convicted of felony offenses under the D.C. Code are

somehow not ``imprisoned felons''), that the Salient Factor Score has

no demonstrated validity as a predictor of recidivism for D.C.

offenders, that the United States Attorney should not be permitted to

object when the Commission proposes to petition the sentencing court

for reduction of a D.C. prisoner's minimum sentence, that prisoners

should not be required to undergo the ``needless formality'' of a

parole application, and that there should be representatives at parole

hearings in D.C. facilities. The revised version of the Salient Factor

Score has proved valid for D.C. Code offenders. The comment about

representatives is understandable, but it appears that the D.C.

Department of Corrections historically has been unwilling (or unable)

to handle the security problems posed by outside representatives.

Objections by the U.S. Attorney often bring to light new information

which should be reviewed prior to filing with the court. An application

for parole provides important information and provides evidence, at

least, of the prisoner's ability to meet the reporting requirements of

parole supervision.

Other commentary was devoted to pointing out discrepancies between

the proposed rules at Secs. 2.77 and 2.78, and the Medical and

Geriatric Parole statute. These comments were very helpful, and the

Commission has made revisions accordingly. There was praise for the

Commission's proposal to conduct initial parole hearings within 180

days of eligibility, which should reduce average prison stays for

offenders with scores of 0-2 (indicating parole at eligibility) by 5 to

9 months. How soon the Commission can accomplish this goal will be

dependent, in large measure, on the D.C. Department of Corrections, and

its ability to provide needed inmate file information in a timely

manner.

Finally, the Public Defender Service objected to crime victims

being permitted to testify at parole hearings, on the theory that

because D.C. Code 23-103 does not guarantee victims this right,

permitting them to do so would be ultra vires. This is an erroneous

argument because it would reduce the victim to the status of a mere

``opponent'' of parole. A victim is more than that. A victim is both

the primary witness to the crime and its impact, and no less a

participant in the criminal justice process than the eligible prisoner.

Moreover, D.C. Code 23-103A was intended to guarantee minimum rights

and not to set limits on the Board of Parole's authority to consider

relevant evidence. The Commission has clarified Sec. 2.72(e)

accordingly.

There were a few comments from individual prisoners, whose concerns

chiefly appear to be to receive the same opportunities as federal

prisoners, and not to be subjected to anything required by the National

Capital Revitalization Act that would make them serve more time in

prison.

Implementation

The regulations set forth below will be made effective as interim

rules on August 5, 1998, with a further period for public comment. The

rules are applicable only to prisoners serving sentences imposed under

the District of Columbia Code, except that the revised Salient Factor

Score (SFS-98) in Sec. 2.20 will be applied to U.S. Code prisoners at

all hearings held on or after August 5, 1998, pursuant to the

Commission's standard retroactivity policy.

The Commission will evaluate the interim rules in the light of

further public comment and operational experience before adopting final

rules. The interim rules will govern all D.C. Code parole hearings and

related matters coming before the Commission on or after August 5,

1998, with the exception of the guidelines at Sec. 2.80, which will be

applied only to D.C. Code prisoners who are given initial parole

hearings on or after August 5, 1998. See Sec. 2.80(e). Prisoners

serving aggregated U.S./D.C. Code sentences will continue

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to be evaluated under (redesignated) Sec. 2.65.

Good Cause Finding

The Commission is making these interim rules effective less than 30

days from the date of this publication for good cause pursuant to 5

U.S.C. 553(d)(3). First, August 5, 1998, is the deadline established by

the National Capital Revitalization Act for the Commission to assume

the function governed by the regulations. Second, the empirical

research found necessary by the Commission to validate its proposed

guidelines as a reliable prediction device for violent recidivism, and

to verify the likely impact of these guidelines on prison population

levels, proved more complex and difficult to accomplish than originally

anticipated. Final results were not available for the Commission's

review until June 30, 1998, and this delayed final voting by the

Commission until July 9, 1998.

Executive Order 12866 and Regulatory Flexibility Statement

The U.S. Parole Commission has determined that this interim rule is

not a significant rule within the meaning of Executive Order 12866, and

the interim rule has, accordingly, not been reviewed by the Office of

Management and Budget. The interim 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 Amendment

Accordingly, the U.S. Parole Commission is adopting the following

amendments 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).

Subpart A--United States Code Prisoners and Parolees

2. Section 2.62 is redesignated as Sec. 2.68.

3. Sections 2.1 through 2.67 (except 2.62) are designated as

subpart A, and Secs. 2.63 through 2.67 are redesignated as Secs. 2.62

through 2.66. The heading for subpart A is added as set forth above.

4. Section 2.20 is amended by removing Item F from the Salient

Factor Scoring Manual (HISTORY OF HEROIN/OPIATE DEPENDENCE), and by

redesignating Item G (OLDER OFFENDERS) as Item F. In addition, Item C

is revised to read as follows:

Sec. 2.20 Paroling policy guidelines; Statement of general policy.

* * * * *

ITEM C. AGE AT COMMENCEMENT OF THE CURRENT OFFENSE/PRIOR COMMITMENTS OF

MORE THAN THIRTY DAYS (ADULT OR JUVENILE)

C.1 If the subject was 26 years of age or more at the

commencement of the current offense and has 3 or fewer prior

commitments, score 3; if four prior commitments, score 2; if five or

more prior commitments, score 1.

C.2 If the subject was 22-25 years of age at the commencement

of the current offense and has three or fewer prior commitments,

score 2; if four prior commitments, score 1; if five or more prior

commitments, score 0.

C.3 If the subject was 20-21 years of age at the commencement

of the current offense and has three or fewer prior commitments,

score 1; if four or more prior commitments, score 0.

C.4 If the subject was 19 years of age or less at the

commencement of the current offense, score 0.

C.5 Definitions (a) Use the age of the commencement of the

subject's current offense behavior, except as noted under the

special instructions for probation/parole/confinement/escape status

violators.

(b) Prior commitment is defined under Item B.

* * * * *

Subpart B--Transfer Treaty Prisoners and Parolees

5. Redesignated Sec. 2.68 is designated as subpart B. Section 2.69

is added to Subpart B and reserved. The heading for subpart B is added

as set forth above.

6. Subpart C is added to consist of Secs. 2.70 through 2.89 to read

as follows:

Subpart C--District of Columbia Code Prisoners and Parolees

Sec.

2.70 Authority and functions of the U.S. Parole Commission with

respect to District of Columbia Code offenders.

2.71 Application for parole.

2.72 Hearing procedure.

2.73 Parole suitability criteria.

2.74 Decision of the Commission.

2.75 Reconsideration proceedings.

2.76 Reduction in minimum sentence.

2.77 Medical parole.

2.78 Geriatric parole.

2.79 Good time forfeiture.

2.80 Guidelines for D.C. Code offenders.

2.81 Effective date of parole.

2.82 Release planning.

2.83 Release to other jurisdictions.

2.84 Conditions of release.

2.85 Release on parole.

2.86 Mandatory release.

2.87 Reparole.

2.88 Confidentiality of parole records.

2.89 Miscellaneous provisions.

2.90 Prior orders of the Board of Parole.

Subpart C--District of Columbia Code Prisoners and Parolees

Sec. 2.70 Authority and functions of the U.S. Parole Commission with

respect to District of Columbia Code offenders.

(a) The U.S. Parole Commission shall exercise authority over

District of Columbia Code offenders pursuant to Section 11231 of the

National Capital Revitalization and Self-Government Improvement Act of

1997, P.L. 105-33, and D.C. Code 24-209. The rules in this Subpart

shall govern the operation of the U.S. Parole Commission with respect

to D.C. Code offenders and are the pertinent parole rules of the

District of Columbia as amended and supplemented pursuant to Section

11231(a)(1) of the Act.

(b) The Commission shall have sole authority to grant parole, and

to establish the conditions of release, for all District of Columbia

Code prisoners who are serving sentences for felony offenses, and who

are not otherwise ineligible for parole by statute, including offenders

who have been returned to prison upon the revocation of parole or

mandatory release, wherever confined. (D.C. Code 24-208). The above

authority shall include youth offenders who are committed to prison for

treatment and rehabilitation based on felony convictions under the D.C.

Code. (D.C. Code 24-804(a)).

(c) The Commission shall have authority to recommend to the

Superior Court of the District of Columbia a reduction in the minimum

sentence of a District of Columbia Code prisoner, if the Commission

deems such recommendation to be appropriate (D.C. Code 24-201(c)).

(d) The Commission shall have authority to grant parole to a

prisoner who is found to be geriatric, permanently incapacitated, or

terminally ill, notwithstanding the minimum term imposed by the

sentencing court (D.C. Code 24-263 through 267).

(e) The Board of Parole of the District of Columbia will continue

to have jurisdiction over District of Columbia Code offenders who have

been released to parole or mandatory release supervision, including the

authority to return such offenders to prison upon an order of

revocation. The jurisdiction and authority of the Board over such

offenders will be transferred to the U.S. Parole Commission by August

5, 2000, pursuant to Section 11231(a)(2) of the Act.

[[Page 39177]]

(f) When the D.C. Board of Parole has issued a warrant for a

parolee who has been confined in a federal prison to serve a new U.S.

or D.C. Code sentence, the U.S. Parole Commission shall have

jurisdiction to revoke parole and to determine the disposition of such

warrant. (D.C. Code 24-209.)

Sec. 2.71 Application for parole.

(a) A prisoner (including a committed youth offender) desiring to

apply for parole shall execute an application form as prescribed by the

Commission. Such forms shall be available at each institution and shall

be provided to a prisoner who is eligible for parole consideration. The

Commission may then conduct an initial hearing or grant an effective

date of parole on the record. A prisoner who receives an initial

hearing need not apply for subsequent hearings.

(b) To the extent practicable, the initial hearing for an eligible

prisoner who has applied for parole shall be held at least 180 days

prior to the prisoner's date of eligibility for parole.

(c) A prisoner may knowingly and intelligently waive any parole

consideration on a form provided for that purpose. A prisoner who

declines either to apply for or waive parole consideration shall be

deemed to have waived parole consideration.

(d) A prisoner who waives parole consideration may later apply for

parole and be heard during the next visit of the Commission to the

institution at which the prisoner is confined, provided that the

prisoner has applied for parole at least 60 days prior to the first day

of the month in which such visit of the Commission occurs. In no event,

however, shall such prisoner be heard at an earlier date than that set

forth in paragraph (b) of this section.

Sec. 2.72 Hearing procedure.

(a) Each eligible prisoner who has applied for parole shall appear

in person for a hearing before an examiner of the Commission. The

examiner shall review with the prisoner the guidelines at Sec. 2.80,

and shall discuss with the prisoner such information as the examiner

deems relevant, including the prisoner's offense behavior, criminal

history, institutional record, health status, release plans, and

community support. If the examiner determines that the available file

material is not adequate for this purpose the examiner may order the

hearing to be postponed to the next docket so that the missing

information can be requested.

(b) Parole hearings may be held in District of Columbia facilities

(including District of Columbia contract facilities) and federal

facilities (including federal contract facilities).

(c) A prisoner appearing for a parole hearing in a District of

Columbia facility shall not be accompanied by counsel, any relative or

friend, or any other person (except a staff member of that facility). A

prisoner appearing for a parole hearing in a federal facility may have

a representative pursuant to Sec. 2.13(b) of this part.

(d) Rehearing disclosure of file material will be available to

prisoners and their representatives only in the case of prisoners

confined in federal facilities, and pursuant to Sec. 2.55 of this part.

(e) A victim of a crime of violence, as defined in D.C. Code 23-

103a(a)(3), or a victim of any other crime, or a representative from

the immediate family of a victim if the victim has died, shall have the

right

(1) To be present at the parole hearings of each offender who

committed the crime, and

(2) To testify and/or offer a written or recorded statement as to

whether or not parole should be granted, including information and

reasons in support of such statement. A written statement may be

submitted at the hearing or provided separately. The prisoner may be

excluded from the hearing room during the appearance of a victim or

representative who gives testimony. A victim or representative may also

request permission to appear for an office hearing conducted by an

examiner (or other staff member) in lieu of appearing at a parole

hearing. Whenever new and significant information is provided under

this rule, the hearing examiner will summarize the information at the

parole hearing and will give the prisoner an opportunity to respond.

Such summary shall be consistent with a reasonable request for

confidentiality by the victim or representative.

(f) Attorneys, family members, relatives, friends, or other

interested persons desiring to submit information pertinent to any

prisoner may do so by forwarding letters or memoranda to the offices of

the Commission prior to a scheduled hearing. Such persons may also

request permission to appear at the offices of the Commission to speak

to a Commission staff member, provided such request is received at

least 30 days prior to the scheduled hearing. The purpose of this

office visit will be to supplement the Commission's record with

pertinent factual information concerning the prisoner, which shall be

placed in the record for consideration at the hearing.

(g) An office visit at a time other than set forth in paragraph (f)

of this section may be authorized only if the Commission finds good

cause based upon a written request setting forth the nature of the

information to be discussed. See Sec. 2.22 of this part.

Notwithstanding the above restriction on office visits, written

information concerning a prisoner may be submitted to the offices of

the Commission at any time.

(h) A full and complete recording of every parole hearing shall be

retained by the Commission. Upon a request pursuant to Sec. 2.56, the

Commission shall make available to any eligible prisoner such record as

the Commission has retained of the hearing.

Sec. 2.73 Parole suitability criteria.

(a) In accordance with D.C. Code 24-204(a), the Commission shall be

authorized to release a prisoner on parole in its discretion after he

or she has served the minimum term of the sentence imposed, if the

following criteria are met:

(1) The prisoner has substantially observed the rules of the

institution;

(2) There is reasonable probability that the prisoner will live and

remain at liberty without violating the law; and

(3) In the opinion of the Commission, the prisoner's release is not

incompatible with the welfare of society.

(b) It is the policy of the Commission with respect to District of

Columbia Code offenders that the minimum term imposed by the sentencing

court presumptively satisfies the need for punishment in respect to the

crime of which the prisoner has been convicted, and that the

responsibility of the Commission is to account for the degree and the

seriousness of the risk that the release of the prisoner would entail.

This responsibility is carried out by reference to the Salient Factor

Score and the Point Assignment Table at Sec. 2.80 of this part.

However, in unusual cases, parole may be denied based upon the gravity

of the offense.

Sec. 2.74 Decision of the Commission.

(a) Following each initial or subsequent hearing, the Commission

shall render a decision granting or denying parole, and shall provide

the prisoner with a notice of action that includes an explanation of

the reasons for the decision. The decision shall ordinarily be issued

within 21 days of the hearing, excluding weekends and holidays.

(b) Whenever a decision is rendered within the applicable guideline

established by these rules, it will be

[[Page 39178]]

deemed a sufficient explanation of the Commission's decision for the

notice of action to set forth how the guideline was calculated. If the

decision is a departure from the guidelines, the notice of action shall

include the reasons for such departure.

(c) Relevant issues of fact shall be resolved by the Commission in

accordance with Sec. 2.19(c) of this part.

Sec. 2.75 Reconsideration proceedings.

(a) If the Commission denies parole, it shall establish an

appropriate reconsideration date in accordance with the provisions of

Sec. 2.80. The prisoner shall be given a rehearing during the month

specified by the Commission, or on the docket of hearings immediately

preceding that month if there is no docket of hearings scheduled for

the month specified. If the prisoner's mandatory release date will

occur before the reconsideration date deemed appropriate by the

Commission pursuant to Sec. 2.80, the Commission may order that the

prisoner be released by the expiration of his sentence less good time

(``continue to expiration''). The first reconsideration date shall be

calculated from the prisoner's eligibility date; any subsequent

reconsideration dates shall be calculated from the date of the last

hearing. However, when the prisoner has waived the initial hearing, the

first reconsideration shall be calculated from the initial hearing

date.

(b) Notwithstanding the provisions of paragraph (a) of this

section, the Commission shall not set a reconsideration date in excess

of five years from the date of the prisoner's last hearing, nor shall

the Commission continue a prisoner to the expiration of his or her

sentence, if more than five years remains from the date of the last

hearing until the prisoner's scheduled mandatory release.

(c) The scheduling of a reconsideration date does not imply that

parole will be granted at such hearing.

(d) Prior to the parole reconsideration date, the Commission shall

review the prisoner's record, including an institutional progress

report which shall be submitted 60 days prior to the hearing. Based on

its review of the record, the Commission may grant an effective date of

parole without conducting the scheduled in-person hearing.

(e) Notwithstanding a previously established reconsideration date,

the Commission may also reopen any case for a special reconsideration

hearing, as provided in Sec. 2.28, upon the receipt of new and

significant information concerning the prisoner.

(f) Upon entering an order revoking parole, the Board of Parole of

the District of Columbia may grant an immediate reparole, or order the

parole violator to be returned to prison. In the latter case, the Board

will order a reconsideration date pursuant to its regulations. The

Commission shall have sole authority to grant or deny reparole to an

offender who has been returned to prison upon an order revoking parole.

Sec. 2.76 Reduction in minimum sentence.

(a) A prisoner who has served three (3) or more years of the

minimum term of his or her sentence may request the Commission to file

an application with the sentencing court for a reduction in the minimum

term pursuant to D.C. Code 24-201c. The prisoner's request to the

Commission shall be in writing and shall state the reasons that the

prisoner believes such request should be granted. The Commission shall

require the submission of a progress report before approving such a

request.

(b) Approval of a prisoner's request under this section shall

require the concurrence of a majority of the Commissioners.

(c) If the Commission approves a prisoner's request under this

section, an application for a reduction in the prisoner's minimum term

shall be forwarded to the U.S. Attorney for the District of Columbia

for filing with the sentencing court. If the U.S. Attorney objects to

the Commission's recommendation, the U.S. Attorney shall provide the

government's objections in writing for consideration by the Commission.

If, after consideration of the material submitted, the Commission

declines to reconsider its previous decision, the U.S. Attorney shall

file the application with the sentencing court.

(d) If a prisoner's request under this section is denied by the

Commission, there shall be a waiting period of two (2) years before the

Commission will again consider the prisoner's request, absent

exceptional circumstances.

Sec. 2.77 Medical parole.

(a) Upon receipt of a report from the institution in which the

prisoner is confined certifying that the prisoner is terminally ill, or

is permanently and irreversibly incapacitated by a physical or medical

condition that is not terminal, the Commission shall determine whether

or not to release the prisoner on medical parole. Release on medical

parole may be ordered by the Commission at any time, whether or not the

prisoner has completed his or her minimum sentence. Consideration for

medical parole shall be in addition to any other parole for which a

prisoner may be eligible.

(b) A prisoner may be granted a medical parole on the basis of

terminal illness if:

(1) The institution's medical staff has provided the Commission

with a reasonable medical judgment that the prisoner is within six

months of death due to an incurable illness or disease; and

(2) The Commission finds that:

(i) The prisoner will not be a danger to himself or others; and

(ii) Release on parole will not be incompatible with the welfare of

society.

(c) A prisoner may be granted a medical parole on the basis of

permanent and irreversible incapacitation only if the Commission finds

that:

(1) The prisoner's condition is such as to render the prisoner

incapable of continuing his criminal career;

(2) The prisoner will not be a danger to himself or others; and

(3) Release on parole will not be incompatible with the welfare of

society.

(d) The seriousness of the prisoner's crime shall be considered in

determining whether or not a medical parole should be granted.

(e) A prisoner, or the prisoner's representative, may apply for a

medical parole by submitting an application to the institution medical

staff, who shall forward the application accompanied by a medical

report and any recommendations within 15 days. The Commission shall

render a decision within 15 days of receiving the application and

report.

(f) A prisoner, the prisoner's representative, or the institution

may request the Commission to reconsider its decision on the basis of

changed circumstances.

(g) Notwithstanding any other provision of this section--

(1) A prisoner who has been convicted of first degree murder or who

has been sentenced for a crime committed while armed under D.C. Code

22-2903, 22-3202, or 22-3204(b), shall not be eligible for medical

parole. (D.C. Code 24-267); and

(2) A prisoner shall not be eligible for medical parole on the

basis of a physical or medical condition that existed at the time the

prisoner was sentenced (D.C. Code 24-262).

Sec. 2.78 Geriatric parole.

(a) Upon receipt of a report from the institution in which the

prisoner is confined that a prisoner who is at least 65 years of age

has a chronic infirmity,

[[Page 39179]]

illness, or disease related to aging, the Commission shall determine

whether or not to release the prisoner on geriatric parole. Release on

geriatric parole may be ordered by the Commission at any time, whether

or not the prisoner has completed his or her minimum sentence.

Consideration for geriatric parole shall be in addition to any other

parole for which a prisoner may be eligible.

(b) A prisoner may be granted a geriatric parole if the Commission

finds that:

(1) There is a low risk that the prisoner will commit new crimes;

and

(2) The prisoner's release would not be incompatible with the

welfare of society.

(c) The seriousness of the prisoner's crime, and the age at which

it was committed, shall be considered in determining whether or not a

geriatric parole should be granted prior to completion of a prisoner's

minimum sentence.

(d) A prisoner, or a prisoner's representative, may apply for a

geriatric parole by submitting an application to the institution

medical staff, who shall forward the application accompanied by a

medical report and any recommendations within 30 days. The Commission

shall render a decision within 30 days of receiving the application and

report.

(e) In determining whether or not to grant a geriatric parole, the

Commission shall consider the following factors:

(1) Age of the prisoner;

(2) Severity of illness, disease, or infirmities;

(3) Comprehensive health evaluation;

(4) Institutional behavior;

(5) Level of risk for violence;

(6) Criminal history; and

(7) Alternatives to maintaining geriatric long-term prisoners in

traditional prison settings.

(D.C. Code 24-265(c)(1)-(7)).

(f) A prisoner, the prisoner's representative, or the institution,

may request the Commission to reconsider its decision on the basis of

changed circumstances.

(g) Notwithstanding any other provision of this section--

(1) A prisoner who has been convicted of first degree murder or who

has been sentenced for a crime committed while armed under D.C. Code

22-2903, 22-3202, or 22-3204(b), shall not be eligible for geriatric

parole (D.C. Code 24-267); and

(2) A prisoner shall not be eligible for geriatric parole on the

basis of a physical or medical condition that existed at the time the

prisoner was sentenced (D.C. Code 24-262).

Sec. 2.79 Good time forfeiture.

Although a forfeiture of good time will not bar a prisoner from

receiving a parole hearing, D.C. Code 24-204 permits the Commission to

parole only those prisoners who have substantially observed the rules

of the institution. Consequently, the Commission will consider a grant

of parole for a prisoner with forfeited good time only after a thorough

review of the circumstances underlying the disciplinary infraction(s)

and if the Commission is satisfied that the parole date set has

required a period of imprisonment sufficient to outweigh the

seriousness of the prisoner's misconduct.

Sec. 2.80 Guidelines for D.C. Code offenders.

(a) Introduction. In determining whether an eligible prisoner

should be paroled, the Commission shall apply the guidelines set forth

in this section. The guidelines assign numerical values to the pre- and

post-incarceration factors described in the Point Assignment Table set

forth in paragraph (f) of this section. Decisions outside the

guidelines may be made, where warranted, pursuant to paragraph (m) of

this section.

(b) Salient factor score and criminal record. The prisoner's

salient factor score shall be determined by reference to the salient

factor scoring manual in Sec. 2.20 of this part. The salient factor

score is used to assist the Commission in assessing the probability

that an offender will live and remain at liberty without violating the

law. The prisoner's record of criminal conduct (including the nature

and circumstances of the current offense) shall be used to assist the

Commission in determining the probable seriousness of the recidivism

that is predicted by the Salient Factor Score.

(c) Disciplinary infractions. The Commission shall assess whether

the prisoner has been found guilty of committing disciplinary

infractions while under confinement for the current offense. The

Commission shall refer to the offense classification tables of the D.C.

Department of Corrections or the Bureau of Prisons, as applicable, in

determining whether the prisoner's disciplinary record should be

counted on the point score. The Commission's general policy shall be

that a single Class I or Code 100 offense, or two or more Class II or

Code 200 offenses, shall be counted as negative institutional behavior

at all hearings. A persistent record of lesser offenses may also be

counted as negative institutional behavior, whether at an initial

hearing or a rehearing. At initial hearings, an infraction free period

of at least three years preceding the date of the hearing may be

considered by the Commission as sufficient to exclude from

consideration a previous record of Class I (or Code 100) or Class II

(or Code 200) offenses, provided that such offenses would result in not

more than one point added to the prisoner's score.

(d) Program achievement. The Commission shall assess whether the

prisoner has demonstrated ordinary or superior achievement in the area

of prison programs, industries, or work assignments while under

confinement for the current offense. Where prison programs and work

assignments are limited or unavailable, the Commission may exercise

discretion based on the prisoner's record of behavior. Points may be

deducted for program achievement regardless of whether points have been

added for negative institutional behavior during the same period.

(e) Implementation. These guidelines shall be applied to all

prisoners who are given initial parole hearings on or after August 5,

1998. For prisoners whose initial hearings were held prior to August 5,

1998, the Commission shall render its decisions by reference to the

guidelines applied by the D.C. Board of Parole. However, when a

decision outside such guidelines has been made by the Board, or is

ordered by the Commission, the Commission may determine the

appropriateness and extent of the departure by comparison with the

guidelines in this section. The Commission may also correct any error

in the calculation of the D.C. Board's guidelines.

(f) Point assignment table.

Add the applicable points from Categories I-III to determine the

base point score. Then add or subtract the points from Categories IV

and V to determine the total point score.

[[Page 39180]]

Point Assignment Table

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

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

Category I: Risk of Recidivism (Salient

factor

score)

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

10-8 (Very Good Risk)...................................... +0

7-6 (Good Risk)............................................ +1

5-4 (Fair Risk)............................................ +2

3-0 (Poor Risk)............................................ +3

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

Category II: Current or Prior Violence (Type of

Risk)

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

Note: Use the highest applicable subcategory. If no

subcategory is applicable, score = 0.

A. Violence in current offense, and any felony violence in

two or more prior offenses................................ +4

B. Violence in current offense, and any felony violence in

one prior offense......................................... +3

C. Violence in current offense............................. +2

D . No violence in current offense and any felony violence

in two or more prior offenses............................. +2

E. Possession of firearm in current offense if current

offense is not scored as a crime of violence.............. +2

F. No violence in current offense and any felony violence

in one prior offense...................................... +1

Category III: Death of Victim or High Level Violence

Note: Use highest applicable subcategory. If no subcategory

is applicable, score = 0.

A. Current offense was high level or other violence with

death of victim resulting................................. +3

B. Current offense involved attempted murder............... +2

C. Current offense was other high level violence........... +1

Base Point Score (Total of Categories I-III)........... ________

Category IV: Negative Institutional Behavior

Note: Use the highest applicable subcategory. If no

subcategory is applicable, score = 0.

A. Negative institutional behavior involving: (1) assault

upon a correctional staff member, with bodily harm

inflicted or threatened, (2) possession of a deadly

weapon, (3) setting a fire so as to risk human life, (4)

introduction of drugs for purposes of distribution, or (5)

participating in a violent demonstration or riot.......... +2

B. Other negative institutional behavior................... +1

Category V: Program Achievement

Note: Use the highest applicable subcategory. If no

subcategory is applicable, score = 0.

A. Acceptable institutional behavior with no program

achievement............................................... 0

B. Acceptable institutional behavior with ordinary program

achievement............................................... -1

C. Acceptable institutional behavior with superior program

achievement............................................... -2

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

Total Point Score (Total of Categories I-V)............ ________

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

(g) Definitions and instructions for application of point

assignment score.

(1) Salient factor score means the salient factor score set forth

at Sec. 2.20 of this part.

(2) High level violence in Category III means any of the following

offenses--

(i) Murder:

(ii) Voluntary manslaughter;

(iii) Arson of an occupied (or potentially occupied) building;

(iv) Forcible rape or forcible sodomy (first degree sexual abuse);

(v) Kidnapping, hostage taking, or any armed abduction of a victim

during a carjacking or other offense;

(vi) Burglary of a residence while armed if a victim was in the

residence at the offense;

(vii) Obstruction of justice through violence or threats of

violence;

(viii) Any offense involving sexual abuse of a person less than

sixteen years of age;

(ix) Any felony resulting in mayhem, malicious disfigurement, or

other serious bodily injury (See Definition No. 3);

(x) Any offense defined below as other violence in which the

offender intentionally discharged a firearm;

(3) Serious bodily injury means bodily injury that involves a

substantial risk of death, unconsciousness, extreme physical pain,

protracted and obvious disfigurement, or protracted loss or impairment

of the function of a bodily member, organ, or mental faculty.

(4) Other violence means any of the following felony offenses that

does not qualify as high level violence--

(i) Robbery;

(ii) Residential burglary;

(iii) Felony assault;

(iv) Felony offenses involving a threat, or risk, of bodily harm;

(v) Felony offenses involving sexual abuse or sexual contact.

(5) Attempts, conspiracies, and solicitations shall be scored by

reference to the substantive offense that was the object of the

attempt, conspiracy, or solicitation; except that Category IIIA shall

apply only if death actually resulted.

(6) Current offense means any criminal behavior that is either:

(i) Reflected in the offense of conviction, or

(ii) Is not reflected in the offense of conviction but is found by

the Commission to be related to the offense of conviction (i.e., part

of the same course of conduct as the offense of conviction).

(7) Category IIE applies whenever a firearm is possessed by the

offender during, or used by the offender to commit, any offense that is

not scored under Category IIA, B, C, or D. Category IIE also applies

when the current offense is felony unlawful possession of a firearm and

there is no other current offense. Possession for purposes of Category

IIE includes constructive possession.

(8) Category IIIA applies if the death of a victim is:

(i) Caused by the offender, or

(ii) Caused by an accomplice and the killing was planned or

approved by the offender in furtherance of a joint criminal venture.

[[Page 39181]]

(9) In some cases, negative institutional behavior that involves

violence will result in a higher score if scored as an additional

current offense under Categories II and/or III, than if scored under

Category IVA. In such cases, the prisoner's point score is recalculated

to reflect the conduct as an additional current offense under

Categories II and/or III, rather than as a disciplinary infraction

under Category IVA. For example, the attempted murder of another inmate

will result in a higher score when treated as an additional current

offense under Categories II and III, if the offense of conviction was

scored under Category IIC only as violence in current offense. If

negative institutional behavior is treated as an additional current

offense, points may still be assessed under Category IVA or B for other

disciplinary infractions.

(10) Superior program achievement means program achievement that is

beyond the level that the prisoner might ordinarily be expected to

accomplish. The Commission may, in its discretion, grant more than a 2

point deduction in the most clearly exceptional cases.

(h) Guidelines for decisions at initial hearing--Adult offenders.

In considering whether to parole an adult offender at an initial

hearing, the Commission shall determine the offender's total point

score and then consult the following guidelines for the appropriate

action:

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

Total Points Guideline recommendation

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

(1) If Points =0........................ Parole at initial hearing with

low level of supervision

indicated.

(2) If Points =1........................ Parole at initial hearing with

high level of supervision

indicated.

(3) If Points =2........................ Parole at initial hearing with

highest level of supervision

indicated.

(4) If Points =3+....................... Deny parole at initial hearing

and schedule rehearing in

accordance with Sec. 2.75(c)

and the time ranges set forth

in paragraph (j) of this

section:

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

(i) Guidelines for decisions at initial hearing--Youth offenders.

In considering whether to parole a youth offender at an initial

hearing, the Commission shall determine the youth offender's total

point score and then consult the following guidelines for the

appropriate action:

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

Total points Guideline recommendation

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

(1) If Points = 0....................... Parole at initial hearing with

conditions established to

address treatment needs;

(2) If Points = 1+...................... Deny parole at initial hearing

and schedule a rehearing

based on estimated time to

achieve program objectives or

by reference to the time

ranges in paragraph (j) of

this section, whichever is

less.

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

(j) Guidelines for time to rehearing adult offenders. (1) If parole

is denied or rescinded, the time to the subsequent hearing for an adult

offender shall be determined by the following guidelines:

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

Months to

Base point score (Categories I through III) Rehearing

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

0-4........................................................ 12-18

5.......................................................... 18-24

6.......................................................... 18-24

7.......................................................... 18-24

8.......................................................... 18-24

9.......................................................... 22-28

10......................................................... 26-32

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

(2) The time to a rehearing shall be determined by the prisoner's

base point score, and not by the total point score at the current

hearing, which indicates only whether parole should be granted or

denied. Exception: In the case of institutional misconduct deemed

insufficiently serious to warrant a change in the prisoner's total

point score, the Commission may nonetheless deny or rescind parole and

render a decision based on the guideline ranges at Sec. 2.36 of this

part.

(k) Guidelines for decisions at subsequent hearing--Adult

offenders. In determining whether to parole an adult offender at a

rehearing or rescission hearing, the Commission shall take the total

point score from the initial hearing or last rehearing, as the case may

be, and adjust that score according to the institutional record of the

candidate since the last hearing. The following guidelines are

applicable:

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

Total Points Guideline recommendation

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

If Points = 0-3......................... Parole with highest level of

supervision indicated.

If Points = 4+.......................... Deny parole at rehearing and

schedule a further rehearing

in accordance with Sec.

2.75(c) and the time ranges

set forth in paragraph (j) of

this section.

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

(l) Guidelines for decisions at subsequent hearing--Youth

offenders. (1) In determining whether to parole a youth offender

appearing at a rehearing or rescission hearing, the Commission shall

take the total point score from the initial hearing or last rehearing,

as the case may be, and adjust that score according to the

institutional record of the candidate since the last hearing. The

following guidelines are applicable:

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

Total Points Guideline recommendation

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

If Points = 0-3......................... Parole with highest level of

supervision indicated.

If Points = 4+.......................... Deny parole and schedule a

rehearing based on estimated

time to achieve program

objectives or by reference to

the time ranges in paragraph

(j) of this section,

whichever is less.

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

[[Page 39182]]

(2) Prison officials may in any case recommend an earlier rehearing

date than ordered by the Commission if Commission's program objectives

have been met.

(m) Decisions outside the guidelines--All offenders.

(1) The Commission may, in unusual circumstances, waive the Salient

Factor Score and the pre- and post-incarceration factors set forth in

this section to grant or deny parole to a parole candidate

notwithstanding the guidelines, or to schedule a reconsideration

hearing at a time different from that indicated in paragraph (j) of

this section. Unusual circumstances are case-specific factors that are

not fully taken into account in the guidelines, and that are relevant

to the grant or denial of parole. In such cases, the Commission shall

specify in the notice of action the specific factors that it relied on

in departing from the applicable guideline or guideline range.

(2) Factors that may warrant a decision above the guidelines

include, but are not limited to, the following:

(i) Poorer parole risk than indicated by salient factor score: The

offender is a poorer parole risk than indicated by the salient factor

score because of--

(A) Repeated failure under supervision (pretrial release,

probation, or parole);

(B) Lengthy history of criminally related substance (drug or

alcohol) abuse; or

(C) Unusually extensive prior record (sufficient to make the

offender a poorer risk than the ``poor'' prognosis category).

(ii) More serious parole risk: The offender is a more serious

parole risk than indicated by the total point score because of--

(A) Extensive record of violence beyond that taken into account in

the guidelines;

(B) Current offense aggravated by extraordinary criminal

sophistication orleadership role;

(C) Unusual cruelty (beyond that accounted for by scoring the

offense as high level violence), or predation upon extremely vulnerable

victim;

(D) Unusual degree of violence attempted or committed in relation

to type of current offense; or

(E) Unusual magnitude of offense in terms of multiple victims,

money, drugs, weapons, or other commodities involved.

(3) Factors that may warrant a decision below the guideline

include, but are not limited to, the following:

(i) Better parole risk than indicated by salient factor score. The

offender is a better parole risk than indicated by the salient factor

score because of (applicable only to offenders who are not already in

the very good risk category)--

(A) a prior criminal record resulting exclusively from minor

offenses;

(B) a substantial crime-free period in the community for which

credit is not already given on the salient factor score;

(C) a change in the availability of community resources leading to

a better parole prognosis;

(ii) Other factors:

(A) Substantial cooperation with the government that has not been

otherwise rewarded;

(B) Substantial period in custody on other sentence(s) or

additional committed sentences sufficient to warrant a finding that the

offender meets the criteria for parole.

Sec. 2.81 Effective date of parole.

(a) A parole release date may be granted up to nine months from the

date of the hearing in order to permit placement in a halfway house or

to allow for release planning. Otherwise, a grant of parole shall

ordinarily be effective not more than six months from the date of the

hearing.

(b) Except in the case of a medical or geriatric parole, a parole

that is granted prior to the completion of the prisoner's minimum term

shall not become effective until the prisoner becomes eligible for

release on parole.

Sec. 2.82 Release planning.

(a) All grants of parole shall be conditioned on the development of

a suitable release plan and the approval of that plan by the

Commission. A parole certificate shall not be issued until a release

plan has been approved by the Commission. In the case of mandatory

release, the Commission shall review each prisoner's release plan to

determine whether the imposition of any special conditions should be

ordered to promote the prisoner's rehabilitation and protect the public

safety.

(b) If a parole date has been granted, but the prisoner has not

submitted a proposed release plan, the appropriate correctional or

supervision staff shall assist the prisoner in formulating a release

plan for investigation.

(c) After investigation by offender supervision staff, the proposed

release plan shall be submitted to the Commission 30 days prior to the

prisoner's parole or mandatory release date.

(d) The Commission may retard a parole date for purposes of release

planning for up to 120 days without a hearing. If efforts to formulate

an acceptable release plan prove futile by the expiration of such

period, or if the Offender Supervision staff reports that there are

insufficient resources to provide effective supervision for the

individual in question, the Commission shall be promptly notified in a

detailed report. If the Commission does not order the prisoner to be

paroled, the Commission shall suspend the grant of parole and conduct a

reconsideration hearing on the next available docket. Following such

reconsideration hearing, the Commission may deny parole if it finds

that the release of the prisoner without a suitable plan would fail to

meet the criteria set forth in Sec. 2.73 of this part. However, if the

prisoner subsequently presents an acceptable release plan, the

Commission may reopen the case and issue a new grant of parole.

(e) The following shall be considered in the formulation of a

suitable release plan:

(1) Evidence that the parolee will have an acceptable residence.

(2) Evidence that the parole will be legitimately employed as soon

as released; provided, that in special circumstances, the requirement

for immediate employment upon release may be waived by the Commission.

(3) Evidence that the necessary aftercare will be available for

parolees who are ill, or who have any other demonstrable problems for

which special care is necessary, such as hospital facilities or other

domiciliary care; and

(4) Evidence of availability of, and acceptance in, a community

program in those cases where parole has been granted conditioned upon

acceptance or participation in a specific community program.

Sec. 2.83 Release to other jurisdictions.

The Commission, in its discretion, may parole any individual from a

facility of the District of Columbia, to live and remain in a

jurisdiction other than the District of Columbia.

Sec. 2.84 Conditions of release.

(a) Parole is granted subject to the conditions imposed by the

Commission as set forth in the certificate of parole. These conditions

shall include, but not be limited to, the following. The parolee must:

(1) Obey all laws;

(2) Report immediately upon release to his or her assigned

supervision office for instructions;

(3) Remain within the geographic limits fixed in the parole

certificate unless official approval is obtained;

(4) Refrain from visiting illegal establishments;

[[Page 39183]]

(5) Refrain from possessing, selling, purchasing, manufacturing or

distributing any controlled substance, or related paraphernalia;

(6) Refrain from using any controlled substance or drug

paraphernalia unless such usage is pursuant to a lawful order of a

practitioner and the parolee promptly notifies the Commission and his

or her supervision officer of same;

(7) Be screened for the presence of controlled substances by

appropriate tests as may be required by the Board of Parole or the

Supervision Officer;

(8) Refrain from owning, possessing, using, selling, or having

under his or her control any firearm or other deadly weapon;

(9) Find and maintain legitimate employment, and support legal

dependents;

(10) Keep the supervision officer informed at all times relative to

residence and work, and report all arrests;

(11) Refrain from entering into any agreement to act as an informer

or special agent for a law enforcement agency without permission from

the supervision authority; and

(12) Cooperate with the officials responsible for his or her

supervision and carry out all instructions of his or her supervision

officer and such special conditions as may have been imposed.

(b) The Commission may add to, modify, or delete any condition of

parole at any time prior to the release of the offender. Following

delivery of the parole or mandatory release certificate, such

jurisdiction is vested in the Board of Parole of the District of

Columbia until that jurisdiction is transferred to the Commission on or

before August 5, 2000.

Sec. 2.85 Release on parole.

(a) When a parole effective date has been set, actual release on

parole on that date shall be conditioned upon the individual

maintaining a good conduct record in the institution or prerelease

program to which the prisoner has been assigned.

(b) The Commission may reconsider any grant of parole prior to the

prisoner's actual release on parole, and may advance or retard a parole

effective date or rescind and deny a parole previously granted, based

upon the receipt of any new and significant information concerning the

prisoner, including disciplinary infractions. The Commission may retard

a parole date for disciplinary infractions (e.g., to permit the use of

graduated sanctions for drug treatment program infractions) for up to

120 days without a hearing.

(c) After a prisoner has been granted a parole effective date, the

institution shall notify the Commission of any serious disciplinary

infractions committed by the prisoner prior to the date of actual

release. In such case, the prisoner shall not be released until the

institution has been advised that no change has been made in the

Commission's order granting parole.

(d) A grant of parole becomes operative upon the authorized

delivery of a certificate of parole to the prisoner, and the signing of

that certificate by the prisoner, who thereafter becomes a parolee

subject to the jurisdiction of the Board of Parole of the District of

Columbia.

Sec. 2.86 Mandatory release.

(a) When a prisoner has been denied parole at the initial hearing

and all subsequent considerations, or parole consideration is expressly

precluded by statute, the prisoner shall be released at the expiration

of his or her imposed sentence less the time deducted for any good time

allowances provided by statute.

(b) Any prisoner having served his or her term or terms less

deduction for good time shall, upon release, be deemed to be released

on parole until the expiration of the maximum term or terms for which

he or she was sentenced, except that if the offense of conviction was

committed before April 11, 1987, such expiration date shall be less one

hundred eighty (180) days. Every provision of this part relating to an

individual on parole shall be deemed to include individuals on

mandatory release.

(c) Each prisoner released in accordance with this section shall be

subject to parole supervision upon the authorized delivery of a

certificate of mandatory release.

Sec. 2.87 Reparole.

Each decision to grant or deny reparole shall be made by reference

to the Commission's reparole guidelines at Sec. 2.21 of this part,

which shall include the establishment of a presumptive or effective

release date pursuant to Sec. 2.12(b) and interim hearings pursuant to

Sec. 2.14. However, if the prisoner is also eligible for parole on a

new D.C. Code felony sentence that has been aggregated with the

prisoner's parole violation term, the guidelines at Sec. 2.80 shall be

applied in lieu of such provisions. Reparole hearings shall be

conducted according to the procedures set forth in Sec. 2.72 of this

part.

Sec. 2.88 Confidentiality of parole records.

(a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552(b)), the

contents of parole records shall be confidential and shall not be

disclosed outside the Commission except as provided below.

(b) Information that is subject to release to the general public

without the consent of the prisoner shall be limited to the information

specified in Sec. 2.37(c) of this part.

(c) Information other than as described in paragraph (b) may be

disclosed without the consent of the prisoner only pursuant to the

provisions of the Privacy Act of 1974 (5 U.S.C. 552(b)). See Sec. 2.56

of this part.

Sec. 2.89 Miscellaneous provisions.

Except to the extent otherwise provided by law, the following

sections in subpart A of this part are also applicable to District of

Columbia Code offenders:

2.5 Sentence aggregation.

2.7 Committed fines and restitution orders.

2.8 Mental competency procedures.

2.10 Date service of sentence commences.

2.16 Parole of prisoner in State, local, or territorial

institution.

2.19 Information considered.

2.22 Communication with Commission.

2.23 Delegation to hearing examiners.

2.32 Parole to local or immigration detainers.

2.34 Rescission of parole.

2.56 Disclosure of Parole Commission file.

2.66 Aggregated U.S. and D.C. Code sentences.

Sec. 2.90 Prior orders of the Board of Parole.

Any prior order entered by the Board of Parole of the District of

Columbia shall be accorded the status of an order of the Parole

Commission unless duly reconsidered and changed by the Commission at a

regularly scheduled hearing. It shall not constitute grounds for

reopening a case that the prisoner is subject to an order of the Board

of Parole that fails to conform to a provision of this part.

Dated: July 15, 1998.

Michael J. Gaines,

Chairman, U.S. Parole Commission.

[FR Doc. 98-19356 Filed 7-20-98; 8:45 am]

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