[Federal Register Volume 59, Number 245 (Thursday, December 22, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-31483] [[Page Unknown]] [Federal Register: December 22, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Parole Commission 28 CFR Part 2 Paroling, Recommitting, and Supervising Federal Prisoners: Salient Factor Scoring AGENCY: Parole Commission, Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The U.S. Parole Commission is clarifying its paroling policy guidelines on using a prior conviction for determining a prisoner's salient factor score, when the prisoner claims the conviction was obtained in violation of his right to counsel, and the records of the conviction are not available. This amendment of the salient factor score instructions was published as an interim rule on March 10, 1994. 59 FR 11185-86. The final version of the rule is almost identical to the interim rule. The rule provides that the prisoner must demonstrate that the allegedly invalid conviction must have occurred prior to Supreme Court decisions establishing the right to counsel for felony and misdemeanor/petty offense convictions. Otherwise, the Commission will presume that the prior conviction was validly obtained and will count the conviction even if records of the conviction are no longer available. EFFECTIVE DATE: January 23, 1995. FOR FURTHER INFORMATION CONTACT: Rockne Chickinell, Office of the General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, telephone (301) 492-5959. SUPPLEMENTARY INFORMATION: The rationale for this revision of the salient factor scoring manual is provided in the supplementary information for the interim rule. 59 FR 11185-86. Several comments were received in response to the publication of the interim rule. One federal defender argued that the interim rule was unfair because if the records of the prior conviction are not available, the limited information the Commission had about the prior conviction was presumptively unreliable. But the mere fact that the records of the conviction are no longer available should not lead to the inference that the conviction did not occur or was obtained using invalid procedures. More likely, the absence of the records would be caused by their destruction or retirement according to a practice of purging court files on a regular schedule. Another person asked the Commission to postpone action on the new rule until it assessed to what extent tribal courts have implemented a defendant's right to counsel. The Commission decided that the promulgation of this rule--which was intended to promptly clarify its salient factor scoring instruction at Item A, paragraph A.8--should not be deferred for the task of re- examining tribal court procedures and determining whether a change in a separate instruction at paragraph A.10 should also be made. Several editorial changes were made in the interim rule. Also, in the final rule the Commission clarifies that the prisoner would have to claim that he served a jail term for a non-felony, pre-1973 conviction before the Commission would decline to count such a conviction in salient factor scoring. If the prisoner had not served a jail term for such a conviction, the conviction would be constitutionally valid even if obtained in violation of his right to counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972). Implementation This rule will be applied at all hearings and record reviews (including reviews of appeals to the National Appeals Board), conducted on or after the effective date. Executive Order 12866 and Regulatory Flexibility Statement The U.S. Parole Commission has determined that this rule is not a significant regulatory action for the purposes of Executive Order 12866 and, accordingly, this rule has not been reviewed by the Office of Management and Budget. This 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. Accordingly, the U.S. Parole Commission is adopting the following amendment to 28 CFR part 2. PART 2--[AMENDED] The Amendment (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, do not count a conviction if: (1) 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 (and the offender claims he served a jail sentence for the non-felony conviction); (2) the offender asserts he was denied his right to counsel in the prior conviction; and (3) the offender provides evidence (e.g., a letter from the court clerk) that the records of the prior conviction are unavailable. * * * * * Dated: December 16, 1994. Edward F. Reilly, Jr., Chairman, Parole Commission. [FR Doc. 94-31483 Filed 12-21-94; 8:45 am] BILLING CODE 4410-01-P