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; amendments.

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SUMMARY: The U.S. Parole Commission is amending the interim rules that

govern the parole process for prisoners serving sentences under the

District of Columbia Code. The amendments provide criteria for filing

applications to reduce a prisoner's minimum sentence, provide deadlines

for conducting hearings for youth offenders, expand the guidelines for

attempted murder to include offenses of equivalent violence,

distinguish between current and prior offenses in the case of probation

violators, improve the procedures for medical and geriatric parole

applications, and add a new guideline for rewarding prisoners who

substantially assist law enforcement.

DATES: Effective Date: February 4, 1999. Comments: Comments must be

received by March 31, 1999.

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 (Pub. L.

105-33) the U.S. Parole Commission assumed, on August 5, 1998, 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. At 63 FR

Part IV (July 21, 1998), and 63 FR 57060 (October 26, 1998), the

Commission published and amended interim regulations, with a request

for public comment, to govern this new function. The Commission is

again amending these interim regulations with a further request for

public comment. The Commission intends that final rule making be

considered later this year, once it is satisfied that it has had enough

experience in the application of these rules to DC Code prisoners.

These amendments are intended to provide solutions to several

problems encountered in processing applications for parole and other

determinations involving DC Code prisoners since August 5, 1998. In the

case of medical and geriatric paroles, comments received from the

University of the District of Columbia have persuaded the

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Commission that some drafting improvements are in order. All comment

received since August 5, 1998, will be carefully reviewed prior to the

adoption of final rules.

Explanation of the Amendments

The Commission has amended the rule that implements DC Code 24-

201(c), which authorizes the Commission to apply to the sentencing

court for a reduction in a prisoner's minimum sentence. The present

rule, adopted from the rules of the DC Board of Parole, do not provide

a clear explanation of the criteria to be used by the Commission in

determining whether or not to file such an application. The criteria

adopted herein are intended to implement the purposes of the law by

requiring that a prisoner must have shown outstanding participation in

rehabilitative programs, must have fully observed prison rules, and

must appear to be an acceptable risk for parole. The amended rule also

specifies that the minimum term must appear to be too long in relation

to the seriousness of the offense, before the Commission can

justifiably recommend to the court that it be reduced. The Commission

finds that, under the law, all the factors that will be considered by

the sentencing court (including both rehabilitation and punishment)

must be found to justify an application to reduce a minimum sentence.

In the practice of the DC Board of Parole, such reductions were sought

by the Board only in the most exceptional cases, and the Commission's

reading of the law supports a continuation of that policy.

With respect to Youth Rehabilitation Act prisoners, the amended

rule provides that the initial parole hearing must be held not later

than 120 days from the prisoner's arrival at the institution that is

responsible for developing his rehabilitative program. Reconsideration

hearings are to be calculated from the date the initial hearing is

held. The amended rule also specifies that when a youth offender whose

parole has been revoked is again heard for parole, the decision is to

be made pursuant to the youth guidelines, and that a new rehabilitative

program be developed. However, if a ``no benefit'' finding has been

made with regard to such a prisoner (which removes him from the youth

program), the adult reparole guidelines at Sec. 2.21 will thereafter be

applied.

With respect to the Point Assignment Table at Sec. 2.80, the

guideline for ``attempted murder'' under Category III has been found to

be too restrictive. The Commission has encountered several cases in

which extremely violent conduct that should have resulted in the

victim's death (i.e., where death was the most likely outcome that

could have been reasonably foreseen) cannot be rated as ``attempted

murder'' because there was no specific intent to kill. The Commission's

predictive judgment is that the offender who commits a crime of such a

wanton and reckless nature, even though without specific intent to

cause death (whether due to his intoxication or otherwise), poses a

risk of future violent conduct equivalent to that of the attempted

murderer. For a case to fall into this category, however, the survival

of the victim must have been clearly against the odds. Pointing a

firearm at a robbery victim, or discharging a firearm in the air

without taking aim, would not be so rated. However, the case of an

intoxicated offender aiming his speeding vehicle directly at a police

officer standing in the street, or stabbing a victim multiple times and

leaving the victim locked in the trunk of his car (with the victim

improbably surviving), would be rated as equivalent to attempted

murder, even if there was no specific intent to kill.

In the case of probation violators, the Commission adopts the same

rule that applies at Sec. 2.20(j)(2) of this Part, which is that the

offense of conviction is included along with the probation violation

behavior as part of the ``current offense'' if the offender did not

serve more than six months in jail before commencing the probation that

was revoked. If, however, the offender served a period of imprisonment

longer than six months for the original offense, then the original

offense is counted as a prior conviction (with a prior commitment)

rather than as part of the ``current offense.'' The Commission's

judgment is that this policy is the best way to assess the predictive

significance of the original offense and the intervening period of

confinement.

In the case of medical and geriatric parole, the Commission agrees

with the comment from UDC that DC Code 24-264 does not require the

institution to ``certify'' the medical status of each applicant, and

that case managers are better suited to process applications for

medical or geriatric parole than the medical staff. The Commission does

not believe that the current rule, however, precludes the institution

medical staff from basing their report about an applicant upon outside

medical expertise. If the institution medical staff does not have the

expertise to evaluate a prisoner's condition, the rule permits the

staff to forward to the Commission the report of the private physician

or facility to which the prisoner has been referred. (Having some level

of review by official staff helps to guard against the possibility of

altered or fraudulent medical reports.) The Commission also disagrees

with the UDC comment that, in the case of applications for medical

parole on the basis of a ``permanent and irreversible incapacitation,''

it is sufficient for the rule to repeat the statutory criterion that

the prisoner ``will not be a danger to himself or others.'' The

statutory language leaves unanswered the question as to how serious the

qualifying incapacitation must be, and exactly what the prisoner must

be incapacitated from doing. The Commission believes that there must be

a clear relationship between the qualifying incapacitation and the

prisoner's asserted suitability for parole, for the incapacitation to

be a legal basis for granting parole. Otherwise, there would be no

limit to the types and degrees of incapacitating conditions put forward

by prisoners as a reason for early parole consideration. The interim

rule has, accordingly, been redrafted to make it clear that the

incapacitating condition must be serious enough to require the prisoner

to cease his criminal career, thus no longer presenting a danger to

himself or others.

Finally, the Commission is adding an additional paragraph to

Sec. 2.63, the rule that provides a guideline for rewarding assistance

by federal prisoners in the prosecution of other offenders. The rule

contains criteria that are equally applicable to DC Code prisoners, but

does not provide a guideline that can be applied to them. Thus, the

Commission is amending the rule to permit either an application for

reduction of the minimum term by up to one-third, or the deduction of

one point from the Total Point Score under Sec. 2.80, as if the

cooperation had been positive program achievement. It is the

Commission's intent that such rewards be limited to cases wherein the

cooperation by the prisoner has produced significant results, and may

signal the prisoner's eventual rehabilitation. It is never the

Commission's practice, however, to grant a reward in advance of

cooperation, regardless of what agreements may be made between

prosecutors and prisoners.

Good Cause Finding

The Commission is making these amendments effective on the date of

this publication, for good cause pursuant to 5 U.S.C. 553(d)(3). This

is because the amendments are needed to address issues that frequently

arise in the parole determination process for which the Commission is

currently responsible.

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Executive Order 12866 and Regulatory Flexibility Statement

The U.S. Parole Commission has determined that this amended interim

rule is not a significant rule within the meaning of Executive Order

12866, and the amended interim rule has, accordingly, not been reviewed

by the Office of Management and Budget. The amended 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 Amendments

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. 28 CFR Part 2 is amended by adding a new paragraph (c) to

Sec. 2.62 to read as follows:

Sec. 2.62 Rewarding Assistance in the Prosecution of Other Offenders:

Criteria and Guidelines

* * * * *

(c) In the case of an eligible DC Code prisoner whose assistance

meets the criteria of this section, the Commission may consider

deducting a point under Category V of the Point Assignment Table at

Sec. 2.80, in addition to any other deduction for positive program

achievement, when considering such prisoner for parole. In the case of

a DC Code prisoner with an unserved minimum term, the Commission may

consider filing an application under Sec. 2.76 for a reduction of up to

one-third of such term less applicable good time.

Supart C--District of Columbia Code Prisoners and Parolees

3. 28 CFR Part 2 is amended by redesignating paragraphs (c) and (d)

as paragraphs (d) and (e) and adding the following new paragraph (c) to

Sec. 2.76 to read as follows:

Sec. 2.76 Reduction in minimum sentence.

* * * * *

(c) Pursuant to DC Code Sec. 24-201c, the Commission may file an

application to the sentencing court for a reduction of a prisoner's

minimum term if the Commission finds that:

(1) The prisoner has completed three years of the minimum term

imposed by the court;

(2) The prisoner has shown, in the opinion of the Commission,

outstanding participation in the rehabilitative program(s) of the

institution;

(3) The prisoner has fully observed the rules of each institution

in which the prisoner has been confined;

(4) The prisoner appears to be an acceptable risk for parole based

on both the prisoner's pre-and post-incarceration record; and,

(5) Service of the minimum term imposed by the court does not

appear necessary to achieve appropriate punishment and deterrence.

* * * * *

4. 28 CFR Part 2 is amended by revising Sec. 2.71(b) to read as

follows:

Sec. 2.71 Application for parole.

* * * * *

(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 an adult prisoner's date of eligibility for parole, and at

least 120 days from the date a youth offender has been admitted to the

institution that is responsible for developing his rehabilitative

program.

* * * * *

4a. Section 2.75(a) is revised to read as follows:

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 be 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, except that in the

case of a youth offender or any prisoner who has waived the initial

hearing, the first reconsideration date shall be calculated from the

date the initial hearing is held. In all cases, any subsequent

reconsideration date shall be calculated from the date of the last

hearing.

* * * * *

4b. Section 2.87 is revised to read as follows:

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, 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 DC Code

felony sentence that has been aggregated with the prisoner's parole

violation term, or is a youth offender serving the remainder of a Youth

Rehabilitation Act sentence following revocation of parole, the

applicable guideline at Sec. 2.80 (adult or youth) shall be applied in

lieu of such provisions. Reparole hearings shall be conducted according

to the procedures set forth in Sec. 2.72.

5. 28 CFR Part 2 is amended by revising Category III B of the Point

Assignment Table at Sec. 2.80(f) to read as follows:

Sec. 2.80 Guidelines for DC Code Offenders.

* * * * *

(f) Point assignment table.

* * * * *

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(Salient

Category III: Death of victim or high level violence factor score)

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* * * *

* * *

B. Current Offense Involved Attempted Murder or Violence

in which Death of Victim Would Have Been the Probable

Result................................................. +2

* * * *

* * *

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6. 28 CFR Part 2 is amended by revising the heading of Sec. 2.80

(g) and paragraph (g)(6) to read as follows:

Sec. 2.80 Guidelines for DC Code Offenders.

* * * * *

(g) Definitions and instructions for application of point

assignment table.

* * * * *

(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). In

probation violation cases, the current offense includes both the

original offense and the violation offense, except that the original

offense shall be scored as a prior conviction (with a prior commitment)

if the prisoner served more than six months in prison for the original

offense before commencement of probation.

* * * * *

7. 28 CFR Part 2 is amended by removing the word ``certifying''

from Sec. 2.77(a), by revising the phrase ``medical staff'' to read

``case management staff'' in Sec. 2.77(e) and by revising Sec. 2.77(c)

to read as follows:

Sec. 2.77 Medical parole.

* * * * *

(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 will not be a danger to himself or others because

his condition renders him incapable of continuing his criminal career;

and,

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

society.

* * * * *

7a. Section 2.78(d) is amended by revising the phrase ``medical

staff'' to read ``case management staff''.

8. 28 CFR Part 2 is amended by adding the following reference to

Sec. 2.89 between the reference to 2.56 and the reference to 2.66:

Sec. 2.89 Miscellaneous provisions.

* * * * *

2.63 Rewarding assistance in the prosecution of other offenders:

criteria and guidelines.

* * * * *

Dated: January 26, 1999.

Michael J. Gaines,

Chairman, U.S. Parole Commission.

[FR Doc. 99-2383 Filed 2-3-99; 8:45 am]

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