[Federal Register Volume 65, Number 90 (Tuesday, May 9, 2000)]
[Proposed Rules]
[Pages 26789-26792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11521]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Prisoners Serving Sentences Under the District of Columbia Code

AGENCY: United States Parole Commission, Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Parole Commission is soliciting public comment on a 
proposal to revise the guidelines at 28 CFR 2.80 that govern its 
decisions to grant and deny parole in the case of prisoners serving 
sentences for felony crimes under the District of Columbia Code. The 
proposal would translate the current Point Assignment Table at 
Sec. 2.80 into guideline ranges, and would authorize the setting of 
presumptive release dates up to 36 months from the date of the parole 
hearing. The purpose of this proposal is to improve understanding by 
inmates and the public as to the impact that the guidelines will have 
in individual cases, and to facilitate successful release planning in 
advance of parole.

DATES: Comments must be received by July 10, 2000.

ADDRESSES: Send comments to Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd., Chevy Chase, MD 20815.

FOR FURTHER INFORMATION CONTACT: Pamela A. Posch, Office of General 
Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, 
Maryland 20815, telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: The Commission solicits comment on a 
revision of 28 CFR 2.80 that it believes would make the guidelines for 
D.C. Code offenders more understandable to inmates and the public, 
fairer, and easier to administer. The proposal would: (1) Enhance the 
ability of inmates and the public, including victims of crime, to 
understand the guidelines and their impact in individual cases by 
translating the current point score into a guideline range at the 
initial and subsequent considerations; (2) provide more information to 
inmates as to their expected release dates by authorizing presumptive 
release dates up to 36 months from the date of the parole hearing 
(contingent upon good conduct and development of an adequate release 
plan); (3) facilitate release planning by setting presumptive release 
dates up to 36 months from the date of the parole hearing; (4) 
eliminate anomalies that occur in the current system with respect to 
penalizing inmates whose rehearings are delayed through no fault of 
their own or who are encouraged by staff to waive parole consideration 
until they complete institutional programs; and (5) reduce the maximum 
time between parole consideration hearings from five years to three 
years.

Summary of the Proposal

    The proposed revision of Sec. 2.80 would require the following 
decisionmaking procedure.
    Under Step 1A, a Base Guideline Range would be determined from the 
Base Point Score. There is no change from the Base Point Score used in 
Sec. 2.80. The Base Point Range (assuming no disciplinary infractions 
and ordinary program achievement) is simply made explicit.\1\
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    \1\ Multiplying (A) the rehearing range in the current D.C. 
guidelines by (B) [the Base Point Score minus 3 points] (the number 
of rehearing required before parole assuming no disciplinary 
infractions and ordinary program achievement) produces the Base 
Point Range. For example, an inmate with a Base Point Score of 6 
with no disciplinary infractions and ordinary program achievement at 
each hearing would have two rehearings with a rehearing range of 18-
24 months each before the guidelines indicated parole. This 
translates to a guideline range of the Parole Eligibility Date plus 
36-48 months. For most cases, the results under the current and 
proposes system will be the same. There are a few differences 
because the current system lumps together certain dissimilar cases; 
for example, under the current system, an offender with a base point 
score of 5 who has outstanding program achievement and no 
disciplinary infractions will serve the same amount of time as an 
offender with ordinary program achievement.

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[[Page 26790]]

    Under Step 1B, a disciplinary guideline range is determined. Under 
Option 1, the current D.C. guideline points (at Sec. 2.80) for 
disciplinary infractions are used but are translated into explicit 
ranges.\2\ Option 2 presents an alternative approach to measuring the 
seriousness of disciplinary infractions. Option 1 would maintain the 
policy of the current guidelines with respect to disciplinary 
infractions. Option 2 would focus more directly on the seriousness of 
the disciplinary infraction itself.
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    \2\ Multiplying the number of disciplinary points by the current 
rehearing range applicable to the current base point score 
determines this guideline range.
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    Under Step 1C, an outstanding program achievement range is 
determined. Under Option 1, the current D.C. guideline points for 
outstanding program achievement are used but translated into explicit 
ranges that are implicit in the current guidelines.\3\ In addition, the 
guidelines are simplified because the point for ordinary program 
achievement has already been built into the base guideline range. 
Option 2 presents an alternative approach to measuring outstanding 
program achievement. Under Option 2, the guideline range for 
outstanding program achievement is linked more directly on the number 
of months of outstanding program achievement.
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    \3\ Multiplying the outstanding program achievement point by the 
current rehearing range applicable to the current base point score 
determines this guideline range.
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Purpose

    The Base Point Guideline Range, Disciplinary Range, and Outstanding 
Program Achievement Range are combined into a composite or total 
guideline range at the initial hearing. This would make clear to the 
inmate the amount of time he or she may expect to serve with continued 
good conduct and ordinary program achievement. The impact of 
outstanding program achievement as well as disciplinary infractions 
would also be made clear. Equally importantly, if release within three 
years was deemed appropriate by the Commission (as opposed to within 9 
months under the current system), the inmate would be given a 
presumptive parole date (contingent upon continued good behavior and 
the development of a satisfactory release plan). In the Commission's 
opinion, presumptive release dates allow the inmate to plan better for 
release and provide a strong incentive for continued good conduct.
    Additionally, with presumptive release dates the final review nine 
months before release (to ensure that the inmate has continued good 
conduct and consider any additional outstanding program achievement) 
can be conducted on the record rather by personal hearing. This is 
administratively more efficient and reduces the possibility of delay in 
scheduling the final hearing (e.g., because of the transfer of the 
inmate between facilities) that may adversely impact the actual release 
date. Only if serious institutional misconduct is found at this record 
review would an in-person rehearing be scheduled.

Invitation for Comment

    Comment is requested both on the overall structure, which would 
provide the inmate with a projected guideline range at the initial 
hearing (and at subsequent hearings, as modified by outstanding program 
achievement or disciplinary infractions) and allow the setting of 
presumptive release dates up to 36 months away. A record review would 
be conducted nine months prior to release to ensure that the inmate has 
continued good conduct and consider any additional outstanding program 
achievement. If a presumptive release date was not set, the prisoner 
would be heard no later than each 36 months in contrast to the current 
rules under which a rehearing may be delayed for up to 60 months.
    Comment is specifically requested on whether the Commission, if it 
adopts the overall structure, should adopt Option 1 or Option 2 for 
consideration of disciplinary infractions. Option 1 replicates the 
current DC guidelines. Option 2 would provide results that in some 
cases would be the same as the current guidelines and in some cases 
would be different. In general, Option 2 provides results that have 
more gradations both at the upper and lower ends of the scale and deal 
with generic behaviors. Option 1 has more limited categories tied to 
how the conduct is classified by the D.C. Department of Corrections or 
Bureau of Prisons. Option 1 also weighs the defendant's current and 
prior record; e.g., if two inmates commit the same disciplinary 
infraction but one has a higher base point score because of a low 
salient factor score or current or past violent offense, that inmate 
will receive a more severe disciplinary guideline range for that 
infraction (in addition to having received a longer base guideline 
range in the first place). Under Option 2, the penalties for the same 
disciplinary infraction will be the same for the two inmates. Because 
the inmate with the higher base point score will have the higher base 
guideline range, that inmate will continue to have a higher total 
guideline range, but the inmate's current or prior record will not be 
counted again in determining the time to be added for the disciplinary 
infraction itself.
    Comment is specifically requested on whether the Commission, if it 
adopts the overall structure, should adopt Option 1 or Option 2 for 
consideration of outstanding program achievement. Option 1 replicates 
the current D.C. guidelines. Option 2 would provide results that in 
some cases would be the same as the current guidelines and in some 
cases would be different. Under Option 1, inmates with the same base 
point score (e.g., BPS 6) receive the same credit for outstanding 
program achievement whether it is based on 100 months (e.g., the time 
in custody prior to the initial hearing) or 18 months (e.g., the time 
until the next rehearing). Under Option 2, the credit for outstanding 
program achievement is tied more directly to the number of months of 
outstanding program achievement.

Proposed Implementation

    The proposed revision of 28 CFR 2.80 would be applied 
prospectively, i.e., to D.C. Code prisoners who receive their initial 
hearings on or after the effective date of the final rule. If, however, 
a D.C. Code prisoner who was previously heard under Sec. 2.80 would not 
be adversely affected by the new guidelines, the new guidelines would 
be applied retroactively at the prisoner's next scheduled rehearing.

Outline of Proposed Revised Section 2.80 and Conforming Changes to 
Other Guidelines

    The proposed alternative to the guideline instructions at 28 CFR 
2.80(h) would provide as follows. Both Option 1 and Option 2 are 
included:

Step 1. Determine the Base Guideline Range

A. Determine the Base Point Score (Using the SFS, Current or Prior 
Violence, and Death)
    The Base Guideline Range for the Base Point Score is set forth 
below:

------------------------------------------------------------------------
                                             Base guideline range=parole
             Base point score               eligibility date (determined
                                              by minimum sentence) + --
------------------------------------------------------------------------
10........................................  136-172 months.
9.........................................  110-140 months.
8.........................................  72-96 months.

[[Page 26791]]

 
7.........................................  54-72 months.
6.........................................  36-48 months.
5.........................................  18-24 months.
4 or 3....................................  12-18 months.
2 or less.................................  zero months.
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    The guideline range for the base point score assumes no 
disciplinary infractions and ordinary program achievement.

    Note: The Base Point Score is determined exactly the same as 
under the current guidelines at Sec. 2.80. There is no substantive 
change.

B. Determine the Guideline Range for Disciplinary Infractions
    Two options are set forth for comment. Option 1 translates the 
current D.C. point score into actual guideline ranges without any 
substantive change. Option 2 uses Sec. 2.36 (the guidelines for 
disciplinary infractions used in Federal cases).
    Option 1. Use the Current D.C. Disciplinary Points to determine the 
guideline range as follows:

------------------------------------------------------------------------
                                        Type of
        Base point score              misbehavior       Guideline range
------------------------------------------------------------------------
10..............................  Aggravated........  52-64 months
10..............................  Ordinary..........  26-32 months
9...............................  Aggravated........  44-56 months
9...............................  Ordinary..........  22-28 months
5-8.............................  Aggravated........  36-48 months
5-8.............................  Ordinary..........  18-24 months
0-4.............................  Aggravated........  24-36 months
0-4.............................  Ordinary..........  12-24 months
------------------------------------------------------------------------

    Option 2. Determine the guideline range applicable to disciplinary 
infractions from section 2.36.

    Note: Option 1 translates the current disciplinary point score 
into a guideline range without any substantive change. Option 2, in 
contrast, applies the guideline ranges for disciplinary infractions 
used in federal cases. The two options will produce different 
results in different cases. In general, Option 2 focuses more on the 
conduct underlying the disciplinary infraction and has finer 
gradations. Option 1 has fewer gradations for the disciplinary 
conduct and also varies the penalty for disciplinary infractions in 
part on the original base point score.

C. Determine the Guideline Range for Outstanding Program Achievement
    Two options are set forth for comment. Option 1 translates the 
current D.C. outstanding program achievement points into a guideline 
range without any substantive change. Option 2 uses a formula based on 
the number months of in custody since the last consideration (or in the 
case of the initial hearing, the number of months in confinement).
    Option 1. The outstanding program achievement guidelines as 
translated from the current D.C . point score are as follows:

------------------------------------------------------------------------
             Base point score                      Guideline range
------------------------------------------------------------------------
0-4.......................................  12-18 months
5-8.......................................  18-24 months
9.........................................  22-28 months
10........................................  26-32 months
------------------------------------------------------------------------

    Option 2. If outstanding program achievement is found, the 
outstanding program achievement guideline is 25% of the number of 
months of outstanding program achievement.
     If this calculation results in a fractional month, it will 
be rounded up to the nearest whole month.
     If outstanding program achievement is found, the offender 
is ordinarily assumed to have outstanding program achievement for the 
total time in custody from the last consideration (or from the 
commitment date in the case of an initial hearing). If, however, the 
Commission expressly finds outstanding program achievement for only 
part of the time in custody (e.g., at an initial hearing the inmate has 
been in custody for 10 years but has shown outstanding program 
achievement for only 5 years), the Commission may determine the 
outstanding program achievement guidelines on the actual amount of time 
with outstanding program achievement.

    Notes: (1) Option 1 (the current D.C. guidelines) gives the same 
weight to outstanding program achievement whether over a period of 
12 months or over a period of 100 months, and varies the weight 
according to the offenders base point score. Option 2, in contrast, 
determines on the number of months of outstanding program 
achievement credit for each offender directly according to the 
number of months of outstanding program participation.
    (2) The current D.C. guidelines have an additional complexity of 
treating lack of ordinary program participation as equivalent to a 
separate disciplinary factor. Under both options of the proposed 
system, such lack of program participation could be addressed by 
placement of the decision within the applicable guideline range--or 
by an upward departure in extreme cases (e.g., a serious offender 
who refused to participate in a necessary treatment program).

Step 2. Determine the Total Guideline Range

    At the initial hearing, the total guideline range is: (1) The Base 
Guideline Range; plus (2) the Disciplinary Guideline Range (if any), 
minus the outstanding program achievement range. This is a 
straightforward arithmetic calculation (the same type of calculation is 
done in federal cases).
Example 1
A. Base Guideline Range=[58-64 months]
    (Base Pt Score=5; Parole Eligibility Date at 40 months)
    Base guideline range=[ 40 + (18-24) months]
B. Disciplinary Range=[12-18 months]
C. Outstanding Program Achievement Range=None
    Total Guideline Range=70-82 months
Example 2
A. Base Guideline Range=[76-88 months]
    (Base Pt Score=6; Parole Eligibility Date at 40 months)
    Base guideline range=[ 40 + (36-48) months]
B. Disciplinary Range=Not applicable
C. Outstanding Program Achievement Range (Based Option 1)=[-(18-24 
months)]
    Total Guideline Range=56-64 months
Example 3
A. Base Guideline Range=[116-128 months]
    (Base Pt Score=6; Parole Eligibility Date at 80 months)
    Base guideline range=[ 80 + (36-48) months]
B. Disciplinary Range=Not applicable
C. Outstanding Program Achievement Range=[-(20 months) (Based on 80 
months outstanding program from top and bottom achievement--Option 2) 
of guideline range]
    Total Guideline Range=[96-108 months]

Step 3. Select One of the Following Decisions

    A. Parole effective within 9 additional months;
    B. Presumptive parole after 10-36 additional months; or
    C. A Reconsideration hearing after 36 months; or
    D. Continue to Expiration within 36 months.
    If a presumptive parole date was given, there would be a record 
review 9 months prior to release (a changeover review) that would 
evaluate any disciplinary infractions or additional outstanding program 
achievement and retard or advance the date as appropriate, or schedule 
a rescission hearing if required.

Step 4. Conducting a Reconsideration Hearing [if Required]

    At a three-year reconsideration hearing, the guideline ranges for

[[Page 26792]]

disciplinary record (since the last hearing) [step 1(b)] and 
outstanding program achievement (from the last hearing) [step 1(c)] 
will be determined and added to or subtracted from the total guideline 
range determined at the last hearing. Otherwise, the actions available 
to the Commission will be the same as at an initial hearing.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this proposed rule 
would not be a significant rule within the meaning of Executive Order 
12866. The proposed rule would 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), and is deemed by the 
Commission to be a rule of agency practice that will not substantially 
affect the rights or obligations of non-agency parties pursuant to 
section 804(3)(C) of the Congressional Review Act.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
parole.

    Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

    Dated: May 2, 2000.
Michael J. Gaines,
Chairman, U.S. Parole Commission.
[FR Doc. 00-11521 Filed 5-8-00; 8:45 am]
BILLING CODE 4410-31-P