[Congressional Record Volume 156, Number 24 (Wednesday, February 24, 2010)]
[Extensions of Remarks]
[Pages E223-E224]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTRODUCTION OF THE UNITED STATES PAROLE COMMISSION AUTHORIZATION ACT 
                                OF 2010

                                 ______
                                 

                       HON. ELEANOR HOLMES NORTON

                      of the district of columbia

                    in the house of representatives

                      Wednesday, February 24, 2010

  Ms. NORTON. Madam Speaker, today, I introduce the United States 
Parole Commission Authorization Act of 2010 to permanently authorize 
the United States Parole Commission (USPC). This bill is intended to 
prevent a replay of a narrowly averted catastrophe in 2008, when 
Congress nearly failed to temporarily reauthorize the USPC before its 
authorization expired. Since 1992, Congress has temporarily 
reauthorized the USPC five times. Now that the USPC has continuing 
responsibilities for Federal and District of Columbia Code Offenders, 
it is important to stabilize this important public safety agency with 
the same kind of authorization as other Federal law enforcement 
agencies.
  The first three-year reauthorization of the USPC began when the 
Sentencing Reform Act of 1984 (SRA) abolished Federal parole and 
replaced it with determinate sentencing, requiring a sentencing judge 
to impose a fixed term of supervised release that is served by 
offenders after completing their prison terms. In order to accommodate 
Federal offenders convicted of crimes while parole was still in effect, 
the SRA called for the USPC to remain in existence until November 1, 
1992, and the USPC has been temporarily reauthorized five times since 
then. Today, the agency grants, denies or revokes parole from Federal 
offenders who are not otherwise ineligible for parole, and makes 
determinations regarding supervised release for others.
  The USPC, however, has had important new responsibilities for more 
than 10 years. To help alleviate a serious financial crisis in the 
District of Columbia, and at the city's request, the National Capital 
Revitalization and Self-Government Improvement Act (Revitalization Act) 
transferred the responsibility for, and the costs of, certain state 
functions from the District to the Federal Government, including the 
transfer of responsibility for D.C. Code Offenders from the D.C. Board 
of Parole to the USPC. The Revitalization Act also eliminated parole in 
the District, and instituted the District's version of determinate 
sentencing, similar to the Federal system. The USPC's duties with 
respect to D.C. Code Offenders vary according to the date on which the 
crime at issue was committed. For D.C. Code Offenders who committed 
crimes before August 5, 2000, and are not otherwise eligible for 
parole, the USPC is currently responsible for granting, denying or 
revoking parole, and making determinations regarding supervised 
release. For D.C. Code Offenders who committed crimes after August 4, 
2000, and who are sentenced to a determinate sentence of imprisonment 
followed by a term of supervised release, the USPC is responsible for 
making determinations regarding supervised release.
  The USPC also has other ongoing duties. These responsibilities 
include granting or denying parole for United States citizens convicted 
of crimes in a foreign country who elect to return to the United States 
to complete their sentences, parole-related functions for certain 
military and state offenders, and decision-making authority over state 
offenders who are on state probation or parole and are transferred to 
Federal authorities under the witness security program.
  Today, however, most of the USPC's day-to-day work involves District 
of Columbia Code Offenders. As of September 2009, the USPC had or will 
have responsibility for approximately 2,500 Federal offenders and 
approximately 9,500 D.C. Code Offenders. Eventually, the USPC will have 
jurisdiction over almost no Federal offenders, but will continue to 
have jurisdiction over D.C. Code Offenders.
  There are two primary reasons for permanently extending the life of 
the USPC. First, as then-Attorney General Ashcroft reported to Congress 
in 2002, ``there is no District of Columbia or federal agency, other 
than the USPC, with the staff, procedures, and infrastructure in place 
to effectively assume the functions of the USPC.'' And, as Edward F. 
Reilly Jr., then-Commissioner of the USPC similarly pointed out in his 
2008 statement before the Subcommittee on Crime, Terrorism and Homeland 
Security, there is no other entity with the statutory authority to do 
so.
  Second, and most important, the failure to extend the life of the 
USPC raises serious due process and ex post facto issues for offenders. 
In addition to its other provisions, the SRA requires the USPC, before 
its expiration, to schedule a release date for all parole-eligible 
offenders. Thus, without an extension, the USPC would be required under 
federal law to set release dates for all parole-eligible Federal 
prisoners, within 3 to 6 months before its expiration, or face due 
process challenges for a failure to set such release dates. This 
requirement could mean an arbitrary adjustment of prisoners' release 
dates, as well as the stripping of inmates of their right to contest 
their release dates, to periodic review and modification of those 
release dates, and to an earlier release date, after the USPC went out 
of existence.
  This issue has already arisen. In a case before the Federal Third 
Circuit Court of Appeals in 2008, the petitioner argued that with the 
expiration of the USPC at the end of that year, and the ``winding up'' 
provision in the SRA requiring the USPC to set a release date for 
offenders within 3 to 6 months before the USPC's expiration, the USPC's 
decision to set a reconsideration hearing date instead of a release 
date violated the SRA. In response, the U.S. Attorney did not refute 
this claim but argued that Congress would likely extend the USPC, 
rendering moot the petitioner's claim that his right to the setting of 
a firm parole release date before the USPC's expiration had been 
violated. The Third Circuit then directed the U.S. Attorney to provide 
information regarding the pending expiration of the USPC

[[Page E224]]

and the likelihood of its extension. Responding to this directive, the 
U.S. Attorney argued that the costs of failure to reauthorize the USPC 
were so high, and the constitutional issues so serious, that 
reauthorization was essentially guaranteed. ``Congress itself has 
expressed concern over potential ex post facto problems that a failure 
to authorize might create,'' the U.S. Attorney wrote, relying on 
language from the legislative history of the Parole Phaseout Act of 
1996. `` `Constitutional requirements, specifically the ex post facto 
clause, necessitate the extension of the commission or the 
establishment of a similar entity authorized by statute to perform its 
functions.' ''
  The Third Circuit crisis in 2008 led Congress to reauthorize the USPC 
just in time, but only for another 3 years. The ordeal dealt a serious 
blow to the USPC. This year, we seek to obtain reauthorization not only 
well ahead of time, but to avoid a ritualistic reauthorization of a 
permanent law enforcement agency every 3 years. It will be particularly 
important to bear in mind that the close call the USPC had in the Third 
Circuit, could be repeated in the other 11 circuits. It is clear that a 
timely, simple reauthorization would have been beneficial to all 
concerned--the USPC, Congress, and the courts. I ask Congress to 
permanently extend the USPC to ensure the smooth and constitutional 
operation of the Federal and District of Columbia criminal justice 
systems.

                          ____________________