[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12049]


[[Page Unknown]]

[Federal Register: May 18, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

 

Paroling, Recommitting, and Supervising Federal Prisoners: 
Parole-Eligible Prisoners Convicted of Aggravated Murders

AGENCY: Parole Commission, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Parole Commission is adding a provision to its 
paroling policy guidelines that requires the Commission to find 
compelling circumstances in mitigation if it grants parole in certain 
types of first-degree murder cases. These cases are limited to 
especially aggravated criminal behaviors that will rarely be 
accompanied by mitigating circumstances, as in the case of murders 
committed to silence a victim or witness, contract murders, and similar 
crimes. The purpose of the rule is to ensure that the release of such 
prisoners, at any point in the sentence imposed, will not promote 
disrespect for the law because of the absence of an explanation 
sufficient to establish a reasonable basis for the parole in the eyes 
of the public.

EFFECTIVE DATE: June 17, 1994.

FOR FURTHER INFORMATION CONTACT:
Richard K. Preston, Office of General Counsel, 5550 Friendship Blvd., 
Chevy Chase, Maryland 20815, telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: Public comment was solicited by publication 
of a proposed rule at 58 FR 65572 (December 15, 1993). One comment from 
the public was received. According to this comment, the proposed rule 
would ``suspend parole eligibility'' for offenders convicted of first-
degree murder, despite their statutory eligibility for parole under 18 
U.S.C. 4205 (1976), if the offense occurred before November 1, 1987.
    The rule as adopted herein would not suspend parole eligibility. It 
creates a presumption against parole, in certain cases, that can be 
overcome by a showing of ``compelling circumstances in mitigation.'' In 
that respect, it is a guideline and not an automatic bar to 
eligibility. All parole guidelines operate as presumptions that may 
either require or preclude a grant of parole, depending on the length 
of the sentence, if the Commission does not find ``good cause'' to 
render a decision outside the guidelines. 18 U.S.C. 4206(c) (1976). 
This rule may likewise preclude some offenders from receiving a parole, 
but it also authorizes a grant of parole if the facts of the case 
warrant a grant of parole. ``Compelling circumstances in mitigation'' 
means mitigating circumstances that are clearly significant, and not 
minor in relation to the gravity of the offense.
    As explained in the proposed rule, the Commission's purpose in 
adopting this paroling policy is to ensure that offenders who are 
convicted of certain types of aggravated murders, and who have served 
enough prison time to satisfy the minimum guideline for Category Eight 
offenses at 28 CFR 2.20, will not automatically be paroled just because 
they are ``within the guidelines.'' The offense behaviors committed by 
these prisoners are so inherently serious that a parole would not be 
justified at any point in the guideline range unless the Commission 
could articulate a clearly significant circumstance in mitigation. 
Otherwise, such a parole would promote disrespect for the law in 
violation of 18 U.S.C. 4206 (1976).
    Moreover, for any offender whose offense is rated Category Eight, 
the guideline range extends from the minimum specified to the full term 
of the sentence imposed. This feature reflects the fact that Category 
Eight cases demonstrate ``extreme variability'' in offense seriousness. 
28 CFR 2.20. Hence, service of the full sentence is an outcome that the 
Category Eight guidelines necessarily contemplate for the most serious 
of the offenders who fall within that category. This rule defines the 
cases for which such an outcome should be expected.
    Finally, the final rule is directed at sole or primary instigators 
(as the example indicates), and is not intended to apply to offenders 
convicted of felony-murder, i.e., a murder that was entirely instigated 
and carried out by a codefendant (or codefendants) in furtherance of a 
joint criminal venture. The Commission intends to focus solely on a 
narrow category of offenders who are at the extreme high end of the 
spectrum of Category Eight offenses in general.

Implementation

    This rule will be applied retroactively when presumptive grants of 
parole decided by the Commission in previous years come up for review. 
If the case falls within the rule, and the Commission has not 
previously articulated a compelling circumstance in mitigation, the 
Commission will reopen the case under 28 CFR 2.28(f) for a hearing to 
determine whether a grant of parole would comport with the public 
acceptance criterion of 18 U.S.C. 4206(a) (1976). It will, in these 
cases, be presumed that the Commission previously followed the 
guidelines at 28 CFR 2.20, but neglected to address the question of 
whether parole would ``promote disrespect for the law.'' This is a 
separate criterion from the criteria measured by the guidelines 
(offense severity and risk). See 2 U.S.C. Code Cong. & Admin. News 
(1976) at 358. If a parole date previously granted is denied for want 
of sufficiently mitigating factors, the Commission will thereby ensure 
that all similarly situated cases are being treated alike. The 
Commission will not, however, reopen cases in which mitigating 
circumstances have already been identified as the basis for granting 
parole, in order to redecide the merits of such a finding.

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 the rule has therefore not been reviewed by the Office of 
Management and Budget. The rule will not have 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 Final Rule

    Accordingly, the U.S. Parole Commission makes the following 
amendment to 28 CFR part 2:
    (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 adding the following 
language to the Note governing Category Eight cases, that appears below 
the table entitled ``Guidelines for Decisionmaking'':


Sec. 2.20  Paroling policy guidelines: Statement of general policy.

* * * * *

Guidelines for Decision Making

* * * * *
    Note: * * * However, a murder committed to silence a victim or 
witness, a contract murder, a murder by torture, the murder of a law 
enforcement officer to carry out an offense, or a murder committed 
to further the aims of an on-going criminal operation, shall not 
justify a grant of parole at any point in the prisoner's sentence 
unless there are compelling circumstances in mitigation (e.g., a 
youthful offender who participated in a murder planned and executed 
by his parent). Such aggravated crimes are considered, by 
definition, at the extreme high end of Category Eight offenses. For 
these cases, the expiration of the sentence is deemed to be a 
decision at the maximim limit of the guideline range. (The fact that 
an offense does not fall under the definition contained herein does 
not mean that the Commission is obliged to grant a parole.)
* * * * *
    Dated: May 6, 1994.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-12049 Filed 5-17-94; 8:45 am]
BILLING CODE 4410-01-M