[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5611]
[[Page Unknown]]
[Federal Register: March 10, 1994]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR Part 2
Paroling, Recommitting, and Supervising Federal Prisoners: Using
Prior Convictions for Salient Factor Scoring
AGENCY: Parole Commission, Justice.
ACTION: Interim rule, with request for public comment.
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SUMMARY: The Parole Commission is clarifying its paroling policy
guidelines with regard to using a prior conviction for determining a
prisoner's salient factor score, when a prisoner claims the conviction
was obtained in violation of his right to counsel, and the records of
the conviction are not available. The Commission's present instruction
for calculating Item A of the score (prior convictions/adjudications)
states that if a prisoner applies to have the appropriate court vacate
a prior conviction, and shows that his attempt failed because the
records of the conviction were no longer available, the conviction
should not be counted. The clarification continues this policy only for
felony convictions that occurred prior to 1964 and convictions for all
lesser offenses before 1973. For convictions that occurred after these
dates, the Commission concludes that the presumption of regularity
applies to the prior conviction and that the conviction should be
counted in scoring Item A, even though the records of the conviction
cannot be retrieved.
DATES: Effective Date: March 10, 1994. Comments: Public comments must
be received by May 9, 1994 in order to be considered prior to adoption
of a final rule.
ADDRESSES: Send comments to Office of the General Counsel, U.S. Parole
Commission, 5550 Friendship Boulevard, Chevy Chase, Maryland 20815.
FOR FURTHER INFORMATION CONTACT:
Rockne Chickinell, Office of the General Counsel, telephone (301) 492-
5959.
SUPPLEMENTARY INFORMATION: In its paroling policy guidelines at 28 CFR
2.20, the Parole Commission provides comprehensive instructions for
determining a prisoner's salient factor score, which is an actuarial
device that assists the Commission in judging the risk of parole
violation if the prisoner is paroled. The instruction at Item A (prior
convictions/adjudications) provides that a prior conviction is presumed
to be valid. However, another instruction in the same paragraph states
that if a prisoner seeks to vacate a prior conviction with the
appropriate court, and provides evidence to the Commission that the
records of the prior proceeding are no longer available, the prior
conviction should not be counted. This latter instruction constitutes
an exception to the general statement that prior convictions are
presumed valid.
The policy on not counting prior convictions when records are
unavailable was included in the Commission's internal procedures manual
in 1983 and was incorporated in the regulations of the Commission, with
all the instructions in the salient factor scoring manual, three years
later. 51 FR 7065 (Feb. 28, 1986). It was based on the assumption that
federal prisoners incarcerated in 1983 might have incurred prior
convictions flawed by a constitutional error so fundamental that the
convictions should not be relied upon as reliable evidence of prior
criminal behavior, i.e., the violation of the defendant's right to
counsel at trial. In 1963, the Supreme Court held that an indigent
defendant has the right to appointed counsel in a felony prosecution.
Gideon v. Wainwright, 372 U.S. 335 (1963). It was not until the Court
decided the case of Argersinger v. Hamlin, 407 U.S. 25 (1972), that
state courts were advised that this right extended to any prosecution
in which the defendant was ultimately sentenced to a jail term. Thus,
misdemeanor and petty offense convictions which may have been obtained
in violation of the constitutional rule laid down in Argersinger would
likely have appeared among the prior convictions of many federal
prisoners incarcerated in 1983. (The appearance of a prior felony
conviction obtained in violation of Gideon was possible but less
likely.) After these landmark decisions, courts presumably conformed
their practices to the new rule, so that the probability that a federal
prisoner would have an invalid prior conviction in his criminal record
would diminish with time.
The Commission's present instruction at Item A gives the prisoner
the benefit of the doubt as to the validity of the prior conviction
when the records have been destroyed or are otherwise unavailable. This
policy is still logical if it is limited to prior convictions that were
incurred before Gideon and Argersinger. But it should not be extended
to convictions obtained after state courts were obliged to follow the
decisions. As the Supreme Court recently noted in Parke v. Raley,
______ U.S. ______, 113 S.Ct. 517, 523-24 (1992), a presumption of
regularity attaches to a prior conviction when a defendant attempts to
collaterally attack the prior proceeding in another forum. This
presumption is especially reasonable when the procedural right
allegedly violated in the prior proceeding was firmly established at
the time of the prior conviction. Id. at 524. In Parke, the Court
employed this presumption in finding that a state did not violate due
process in a sentencing proceeding by requiring a defendant to bear the
burden of producing evidence which demonstrates the invalidity of his
prior convictions, when records of the prior convictions were
unavailable. The Commission believes this presumption of regularity
should also apply in parole proceedings in calculating the salient
factor score, if the records of the conviction are not available.
Without a revision to the present instruction, the Commission would
be restricting itself from counting convictions that are presumptively
valid, simply because a court clerk had purged the records of a prior
conviction according to a records retirement or destruction schedule.
In such a case, the Commission would be ignoring, without good cause,
reliable evidence of the risk the prisoner may pose to the public if
paroled. In order to prevent this unintended result, the Commission is
limiting its policy on not counting prior convictions when records are
unavailable to felony convictions that were incurred prior to 1964, and
misdemeanor or petty offense convictions incurred prior to 1973. The
Commission is retaining its instruction on allowing the use of such
convictions to reach a parole prognosis based on the exercise of
clinical judgment, even if the convictions are not counted in scoring
Item A.
Finally, the revision clarifies that the policy at issue only
allows for challenges to the validity of prior convictions based on the
alleged infringement of the right to counsel at trial. The policy does
not permit prisoners to collaterally attack prior convictions on
constitutional issues that are less easily resolved than the
defendant's right to counsel, and less essential to guaranteeing the
reliability of the finding of the defendant's guilt.
Implementation
This rule will be applied at all hearings and record reviews
(including reviews of appeals to the National Appeals Board), conducted
after the effective date.
Executive Order 12291 and Regulatory Flexibility Statement
The Parole Commission has determined that this interim rule is not
a major rule within the meaning of Executive Order 12291. This rule, if
adopted as a final 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, Prisoners, Probation and
parole.
Accordingly, the Parole Commission adopts the following amendment
to 28 CFR part 2.
The Amendment
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).
(2) 28 CFR part 2, Sec. 2.20 is amended by revising the second and
sixth sentences of the Salient Factor Scoring Manual, Item A, paragraph
A.7, to read as follows:
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
* * * * *
Salient Factor Scoring Manual
* * * * *
Item A. Prior Convictions/Adjudications (Adult or Juvenile)
* * * * *
A.7 Convictions Reversed or Vacated on Grounds of Constitutional or
Procedural Error
* * * * *
It is the Commission's presumption that a conviction/adjudication
is valid, except under the limited circumstances described in the first
note below.
* * * * *
Similarly, if the offender has petitioned the appropriate court to
overturn a felony conviction that occurred prior to 1964, or a
misdemeanor/petty offense conviction that occurred prior to 1973, on
the ground that his right to counsel was denied, and the offender
provides evidence (e.g., a letter from the court clerk) that the
required records are unavailable, do not count the conviction.
* * * * *
Dated: February 10, 1994.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-5611 Filed 3-9-94; 8:45 am]
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