[Federal Register Volume 64, Number 23 (Thursday, February 4, 1999)]
[Rules and Regulations]
[Pages 5611-5614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 99-2383]


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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

[[Page 5612]]

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.

[[Page 5613]]

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.
* * * * *

------------------------------------------------------------------------
                                                             (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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[[Page 5614]]

    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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