[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]
BILLING CODE 4410-01-M