[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12052]


[[Page Unknown]]

[Federal Register: May 20, 1994]


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

DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

 

Paroling, Recommitting, and Supervising Federal Prisoners: 
Prisoners Transferred to the United States Under Prisoner-Exchange 
Treaties

AGENCY: Parole Commission, Justice.

ACTION: Final rule.

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

SUMMARY: The U.S. Parole Commission is amending its regulation 
concerning transfer treaty prisoners to suspend the requirement for a 
downward adjustment of 15 percent from the release date determined by 
the Commission under 18 U.S.C. 4106A and to remove a provision 
authorizing the Commission to reopen a decision if the prisoner is 
denied good time credit for prison misconduct. The amendment reflects 
the new policy of the U.S. Bureau of Prisons which now deducts foreign 
and domestic good time credits from the release date set by the 
Commission under 18 U.S.C. 4106A. The 15 percent downward adjustment 
was instituted by the Commission to compensate transferees, whose 
release dates are set pursuant to the sentencing guidelines, for the 
absence of the statutory good time deductions that would reduce the 
guideline sentences of similarly-situated U.S. Code offenders. An 
interim rule suspending that downward adjustment is necessary because, 
in three judicial circuits, federal appellate courts have now ruled 
that the U.S. Bureau of Prisons must deduct a transferee's foreign and 
domestic good time credits under 18 U.S.C. 4105.

EFFECTIVE DATE: The Final Rule takes effect on May 20, 1994.

FOR FURTHER INFORMATION CONTACT:
Richard K. Preston, Office of General Counsel, U.S. Parole Commission, 
5550 Friendship Blvd., Chevy Chase, Maryland, Telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: The U.S. Parole Commission introduced the 15 
percent downward adjustment in release dates for transferees and the 
reopening for institutional misconduct at 58 FR 30703 (May 27, 1993). 
The Commission announced that it was adopting a provision that required 
each release date determined under 18 U.S.C. 4106A contain a 15 percent 
downward adjustment recognizing that under the Bureau of Prisons policy 
in effect at the time, that all good time (both foreign and domestic) 
was deducted from the full term of the foreign sentence pursuant to 18 
U.S.C. 4105. The Commission recognized that this interpretation of the 
law raised a legitimate concern about disparity between transferees and 
similarly-situated U.S. Code offenders as well as problems of 
discipline for the Bureau of Prisons. To ameliorate this disparity, the 
Commission adopted the 15 percent adjustment to reflect the potential 
good time that would reduce the guideline sentence of a similarly-
situated U.S. Code offender. The rule also instituted a means for 
modifying the adjusted release date if the transferee violated prison 
rules. This reopening was found to be necessary because under the 
Bureau of Prisons policy then in effect, the withholding of good time 
credit pursuant to 18 U.S.C. 3624(b) only had a real impact in cases 
where the Commission had continued the transferee to expiration of his 
foreign sentence.

    Since that time, three federal appellate courts (See Ajala v. 
United States Parole Comm'n, 997 F.2d 651 (9th Cir.), reh'g denied, 
____ F.2d ____ (9th Cir. Oct. 13, 1993); Trevino-Casares v. United 
States Parole Comm'n, 992 F.2d 1086 (10th Cir.), reh'g denied, ____ 
F.2d ____ (10th Cir. Aug. 10, 1993); Asare v. United States Parole 
Comm'n, 2 F.3d 540 (4th Cir. 1993)) have held that the Bureau of 
Prisons must deduct the offender's foreign and domestic service credits 
from the release date established by the U.S. Parole Commission under 
18 U.S.C. 4106A as if it were a new domestic sentence rather than the 
equivalent of a parole date (which the Commission understood it to be). 
In light of these decisions, the Bureau of Prisons has decided to apply 
the foreign and domestic good behavior credits to the release date set 
by the Commission. The change in the Bureau of Prisons policy prompted 
the Commission to amend its regulations.
    On December 14, 1993, the Commission published an interim rule with 
request for public comment (58 FR 65547) that amended the Commission's 
regulation and suspended the requirement for a downward adjustment of 
15% from the release date determined by the Commission. The regulation 
also removed the Commission's authority to reopen a decision if the 
prisoner is denied good time credit. The amendment reflected the new 
policy of the Bureau of Prisons which went into effect on December 15, 
1993, to deduct foreign and domestic good time credits from the release 
date set by the Commission (if not CTE).
    The Commission received comment from the Federal Public Defender 
for the Western District of Texas which supports the Commission's 
proposed rule. Federal Public Defender, Texas, Lucien B. Campbell, and 
Assistant Federal Public Defender, Henry J. Bemporad, concluded as 
follows:

[T]he Parole Commission's suspension of its regulation in order to 
complement the new Bureau of Prisons policy also accords with 
Congress' intent in enacting Secs. 4105(c) and 4106A. The federal 
defenders support this step towards equal treatment of transferees 
and domestic defendants.

    The Commission is gratified by this comment, but notes that ``equal 
treatment'' of transferees and domestic offenders is, in the long run, 
an objective that cannot be attained. Transferees from countries that 
grant work and remission credits will receive both U.S. good time at 
the rate provided by 18 U.S.C. 3624(a) and their foreign credits, and 
will thereby be treated more leniently than domestic offenders.
    Finally, a technical conforming amendment was made to 28 CFR 
2.62(i)(1) to change the reference to a ``mandatory release date'' to 
``full term date of the foreign sentence.'' This amendment was 
necessary to conform to the change made in Sec. 2.62(a)(5).

Implementation

    This rule applies to all transfer treaty hearings held after 
December 15, 1993. The rule is to be applied retroactively to prior 
determinations where the Commission adjusted the guideline release date 
by 15 percent and/or reopened a case under 28 CFR 2.62(k)(7). The rule 
will not apply to transferees who have already been released and it 
will not serve to modify or reduce any period of supervised release 
that a transferee is now serving.

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 adopts the following 
amendment to 28 CFR part 2.

The Amendments

    (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. 2.62 is amended by removing the second 
sentence of paragraph (a)(5) and inserting, in its place, four 
sentences, to read as set forth below.
    (3) 28 CFR part 2, Sec. 2.62 is further amended by revising 
paragraphs (i)(1) and (i)(2) to read as set forth below.
    (4) 28 CFR part 2, Sec. 2.62 is further amended by removing 
paragraph (k)(7) and by redesignating paragraph (k)(8) as new paragraph 
(k)(7).


Sec. 2.62  Prisoners transferred pursuant to treaty.

    (a) Applicability, jurisdiction and statutory interpretation.
* * * * *
    (5) * * * However, the release date shall be treated by the Bureau 
of Prisons as if it were the full term date of a sentence for the 
purpose of establishing a release date pursuant to 18 U.S.C. 
4105(c)(1). The Bureau of Prisons release date shall supersede the 
release date established by the Parole Commission under 18 U.S.C. 4106A 
and shall be the date upon which the transferee's period of supervised 
release commences. If the Commission has ordered ``continue to 
expiration,'' the 4106A release date is the same as the full term date 
of the foreign sentence. It is the Commission's interpretation of 18 
U.S.C. 4105(c)(1) that the deduction of service credits in either case 
does not operate to reduce the foreign sentence or otherwise limit the 
Parole Commission's authority to establish a period of supervised 
release extending from the date of actual release from prison to the 
full term date of the foreign sentence.
* * * * *
    (i) Final decision. (1) The Commission shall render a decision as 
soon as practicable and without unnecessary delay. The decision shall 
set a release date and a period and conditions of supervised release. 
If the Commission determines that the appropriate release date under 18 
U.S.C. 4106A is the full term date of the foreign sentence, the 
Commission will order the transferee to ``continue to expiration.''
    (2) Whenever the Bureau of Prisons applies service credits under 18 
U.S.C. 4105 to a release date established by the Commission, the 
release date used by the Bureau of Prisons shall be the date 
established by the Parole Commission pursuant to the sentencing 
guidelines and not a date that resulted from any adjustment made to 
achieve comparable punishment with a similarly-situated U.S. Code 
offender. The application of service credits under 18 U.S.C. 4105 shall 
supersede any previous release date set by the Commission. The 
Commission may, for the purpose of facilitating the application of 
service credits by the Bureau of Prisons, reopen any case on the record 
to clarify the correct release date to be used, and the period of 
supervised release to be served.
* * * * *
    Date: May 6, 1994.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-12052 Filed 5-19-94; 8:45 am]
BILLING CODE 4410-01-M