[Federal Register Volume 59, Number 170 (Friday, September 2, 1994)]
[Rules and Regulations]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21722]


[[Page Unknown]]

[Federal Register: September 2, 1994]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR. Part 2

 

Paroling, Recommitting, and Supervising Federal Prisoners: Parole 
Hearings Conducted by Single Hearing Examiners

AGENCY: Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is adopting a rule that permits 
parole hearings for eligible federal prisoners to be conducted by a 
single hearing examiner. Formerly, parole hearings were conducted by 
panels of two examiners, with single-examiner hearings being the 
exception. The final rule issued today makes single examiner hearings 
the norm, with the Commission having the option to order panel hearings 
when appropriate. Review and voting by the Regional Administrator will 
provide the Regional Commissioner with a panel recommendation of two 
examiners before a decision is rendered. The rule will also permit a 
hearing examiner (or panel) to withhold the recommended decision that 
is usually given to the prisoner at the conclusion of a parole hearing, 
if a critical issue requires further consideration. The purpose served 
by this final rule is to adjust the Commission's procedures to the 
down-sizing requirements of the Commission's impending abolition, 
without lessening the quality of justice in parole hearings and 
decisions.

EFFECTIVE DATE: October 3, 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 an interim rule at 47 FR 11186 (March 10, 1994). Comment was 
received from the University of Southern California Law Center (USCLC), 
the Federal Public Defenders for the Central District of California and 
the Western District of Pennsylvania, and several federal prisoners. 
This comment was uniformly negative, and emphasized the aura of 
fairness that is assertedly lost when parole hearings are conducted by 
a single examiner. Moreover, the public comment advanced various legal 
arguments to the effect that due process, and the intent of Congress in 
the Parole Commission and Reorganization Act of 1976, mandate the 
Commission to continue conducting parole hearings with panels of two 
examiners.
    With respect to the constitutional and legal arguments advanced in 
the public comment, the Commission has rejected those arguments. 
Contrary to the public comment from the USCLC, the legislative history 
to the 1986 amendment to 18 U.S.C. Sec. 4208 clearly states that 
Congress intended the Parole Commission to ``utilize its resources most 
efficiently'' by having one examiner conduct the parole hearing, with 
the second examiner reviewing the case on the record. 132 Cong. Rec. 
H11291, 11293 (daily ed. Oct. 17, 1986) (remarks of Rep. Berman). 
Moreover, the analogy drawn in the public comment between the right of 
a parolee to due process under Morrissey v. Brewer, 408 U.S. 470 
(1972), and the right of an eligible prisoner to a parole hearing, is 
not a correct analogy. A parole hearing is not designed to test the 
credibility of live witnesses, but serves the limited purposes of 
providing the prisoner with an opportunity: (1) to ensure that the 
records under consideration by the Parole Commission are, in fact, the 
records relating to his case; and (2) to present any special 
considerations demonstrating why he is an appropriate candidate for 
parole. See Greenholtz v. Inmates of Nebraska Penal and Correctional 
Complex, 442 U.S. 1, 15 (1979). Even under the Parole Commission and 
Reorganization Act of 1976, single-examiner hearings were permitted in 
special situations, thus precluding the assumption, advocated in the 
public comment, that Congress made a two-examiner panel a legal 
necessity regardless of the circumstances. The 1976 law also permitted 
parole revocation hearings under Morrissey v. Brewer, supra, to be 
conducted by a single examiner. Hence, the arguments that the Parole 
Commission is precluded by law from responding to the circumstances 
created by its abolition in the Sentencing Reform Act of 1984, are 
without merit.
    On the other hand, the Parole Commission is sensitive to the 
concerns expressed by the prisoners themselves for maintaining the 
fairness of parole consideration, especially with regard to the 
deliberations that precede the panel recommendation to the Regional 
Commissioner. To this end, the Commission will institute every 
reasonable measure to ensure thorough consideration by the Regional 
Administrator, who will participate as a panel member in arriving at a 
well-considered, independent evaluation of the prisoner's case. 
Although the presence of two hearing examiners provides an eligible 
prisoner with the outward assurance of fairness, the ultimate fairness 
of the deliberations that go into a parole decision is not diminished 
if the absent secondary examiner is given more opportunity for 
reflection and study of the case file in the regional office, than 
would be possible when examiners are obliged to complete a docket of 
hearings in an institution.
    Finally, the restraints imposed upon the U.S. Parole Commission by 
its impending abolition on November 1, 1997, require that the 
Commission balance the objective of a fair parole hearing with the need 
for appropriate conservation of limited staff resources.
    Public comment was also received with regard to the provision 
permitting an examiner to forego the recommended decision normally 
announced at the conclusion of a parole hearing. The Commission agrees 
that this should be an extraordinary procedure, and should not be 
invoked by hearing examiners on a routine basis. The Commission will 
monitor the practices of its hearing examiners to ensure that overuse 
of this provision (as predicted in some of the public comment) will not 
occur.

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 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.
The Final Rule

    Accordingly, the Parole Commission adopts the following amendment 
to 28 CFR part 2:

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. 2.13 is amended by revising paragraphs (a), 
(b) and (c) to read as follows:


Sec. 2.13  Initial hearing; procedure.

    (a) An initial hearing shall be conducted by a single hearing 
examiner unless the Regional Commissioner orders that the hearing be 
conducted by a panel of two examiners. The examiner shall discuss with 
the prisoner his offense severity rating and salient factor score as 
described in Sec. 2.20, his institutional conduct and, in addition, any 
other matter the examiner may deem relevant.
    (b) A prisoner may be represented at a hearing by a person of his 
or her choice. The function of the prisoner's representative shall be 
to offer a statement at the conclusion of the interview of the prisoner 
by the examiner, and to provide such additional information as the 
examiner shall request. Interested parties who oppose parole may select 
a representative to appear and offer a statement. The hearing examiner 
shall limit or exclude any irrelevant or repetitious statement.
    (c) At the conclusion of the hearing, the examiner shall discuss 
the decision to be recommended by the examiner, and the reasons 
therefor, except in the extraordinary circumstance of a complex issue 
that requires further deliberation before a recommendation can be made.
* * * * *
    3. 28 CFR part 2, Sec. 2.23 is amended by revising paragraphs (a), 
(b) and (c) to read as follows:


Sec. 2.23  Delegation to hearing examiners.

    (a) There is hereby delegated to hearing examiners the authority 
necessary to conduct hearings and to make recommendations relative to 
the grant or denial of parole or reparole, revocation or reinstatement 
of parole or mandatory release, and conditions of parole. Any hearing 
may be conducted by a single examiner or by a panel of examiners. A 
Regional Administrator shall function as a hearing examiner for the 
purpose of obtaining a panel recommendation whenever the Regional 
Commissioner has not ordered that a hearing be conducted by a panel of 
two examiners.
    (b) The concurrence of two hearing examiners, or of a hearing 
examiner and the Regional Administrator, shall be required to obtain a 
panel recommendation to the Regional Commissioner. A panel 
recommendation is required in each case decided by a Regional 
Commissioner after the holding of a hearing.
    (c) An examiner panel recommendation consists of two concurring 
examiner votes. In the event of divergent votes, the case shall be 
referred to another hearing examiner (or to the Regional Administrator 
in the case of a hearing conducted by a panel of examiners) for another 
vote. If concurring votes do not result from such a referral, the case 
shall be referred to any available hearing examiner until a panel 
recommendation is obtained.
* * * * *
    Dated: August 22, 1994.
Jasper R. Clay, Jr.,
Vice Chairman, U.S. Parole Commission.
[FR Doc. 94-21722 Filed 9-1-94; 8:45 am]
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