[Federal Register Volume 65, Number 247 (Friday, December 22, 2000)]
[Rules and Regulations]
[Pages 80745-80749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32772]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 524 and 550

[BOP-1034-F; BOP-1052-F; BOP-1070-F]
RIN 1120-AA36; RIN 1120-AA66


Drug Abuse Treatment and Intensive Confinement Center Programs: 
Early Release Consideration

AGENCY: Bureau of Prisons, Justice.

ACTION: Finalization of interim rules.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes 
three interim final rules, published in 1995, 1996 and 1997, on Drug 
Abuse Treatment Programs. These rules allow for consideration of early 
release of eligible inmates who complete a residential drug abuse 
treatment program. This document also finalizes the conforming 
amendment to the criteria for possible sentence reduction under the 
intensive confinement center program.

EFFECTIVE DATE: December 22, 2000.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau finalizes its interim rules on 
Drug Abuse Treatment Programs (28 CFR part 550, subpart F). These 
interim rules implemented the Bureau's discretion under Section 32001 
of the Violent Crime Control and Law Enforcement Act of 1994 (codified 
at 18 U.S.C. 3621(e)) to reduce the period of custody for inmates who 
successfully complete the treatment program.
    We published the first interim rule in the Federal Register on May 
25, 1995 (60 FR 27692) and we amended it by a second interim rule 
published on May 17, 1996 (61 FR 25122). We then published a third 
interim rule on this subject on October 15, 1997 (62 FR 53690). This 
last interim rule also made conforming amendments to the criteria for 
possible sentence reduction under the intensive confinement program (28 
CFR 524.31(a)(3)).
    On September 9, 2000, BOP published at 65 FR 56840 a proposed rule 
regarding ``Drug Abuse Treatment Program''. By that rule, BOP proposes 
changes to its existing regulations concerning participation in the 
drug abuse education course and the residential drug abuse treatment 
program, part of which had been codified by the three earlier interim 
rules which we finalize in this document. This document, therefore, 
does not affect comments to the proposed rule document published at 65 
FR 56840. We will consider all comments we receive on the proposed rule 
before we finalize it. This document only discusses comments we 
received on the three interim final rules we previously published in 
1995, 1996 and 1997.

Changes Made by the First Interim Rule

    The first interim rule established the procedures which we would 
use to determine (1) eligibility for early release under 18 U.S.C. 
3621(e) and (2) the length of the reduction in sentence.
    To conform with the statutory provisions that possible reduction in 
sentence applies to an inmate convicted of a nonviolent offense, the 
procedures in our interim final rule stated that an inmate whose 
current offense falls under the definition in 18 U.S.C. 924(c)(3) of a 
crime of violence is excluded from early release.
    Under section 924(c)(3), a crime of violence means an offsense that 
is a felony and has as an element the use, attempted use, or threatened 
use of physical force against the person or property of another, or 
that by its nature, involves a substantial risk that physical force 
against the person or property of another may be used in the course of 
committing the offense. Staff use information in the Judgment and 
Commitment Order and the Presentence Investigation Report to determine 
if the inmate's committed offense meets this definition of crime of 
violence.
    In exercising the Bureau's discretion to reduce a sentence, we also 
review the inmate's criminal history in the Presentence Investigation 
Report. We preclude early release for any inmate with an adult prior 
federal and/or state conviction for homicide, forcible rape, robbery, 
or aggravated assault. We selected the above categories of crimes, 
which are reported under the FBI Violent Crime Index, due to the 
extensive variations in statutes between states.
    Inmates in our custody who are not serving a sentence for a federal 
offense (for example, INS detainees, pretrial inmates, or contractual 
boarders) are not eligible for early release. An inmate eligible for 
parole is not eligible for early release by the Bureau; however, 
information concerning the successful completion of a residential drug 
abuse treatment program by a parole-eligible inmate will be transmitted 
to the Parole Commission for consideration of a Superior Program 
Achievement Award (see 28 CFR 2.60).

Summary of Public Comments on First Interim Rule

    Fifteen commenters objected on the grounds that the interim 
regulations did not extend early release to inmates serving a sentence 
for a non-parolable offense.
    Four commenters objected to using prior convictions as a 
disqualifying criterion. Two of these commenters

[[Page 80746]]

requested that if we used prior convictions as a disqualifying 
criterion, we should limit such use to convictions within the last 
fifteen years. These commenters stated that the fifteen year time limit 
was used in the Sentencing Commission Criminal History Category.
    Two commenters recommended that inmates who completed or were in 
Bureau drug abuse treatment programs between the time it became known 
that Congress was considering the amendment to 18 U.S.C. 3621(e) and 
the publication of the interim rule be granted consideration regardless 
of any disqualifying criterion.
    These commenters stated that inmate participation in the Bureau's 
drug abuse treatment program was motivated by the expectation that the 
inmate would subsequently be eligible for early release. One of these 
commenters recommended that some offenses should not be included under 
the prior conviction category, but recommended that others be included.
    One commenter, the American Psychiatric Association, agreed that 
the program was a good idea, but expressed concern about the adequacy 
of transitional drug treatment programming provided at Bureau 
institutions. The Bureau's regulations in 28 CFR 550.59(a) required 
minimum participation of one hour per month for such transitional 
services. The Association stated that this minimum was probably not of 
sufficient intensity to facilitate a good outcome and recommended 
enhanced psychiatric consultation and the availability of a broad array 
of services. The comment by the American Psychiatric Association on the 
adequacy of transitional services became the basis for the second 
interim rule.

Agency Response to Public Comment on the First Interim Rule

    We do not have statutory authority under 18 U.S.C. 3621(e) to grant 
early release to an inmate who is serving a sentence for an offense 
committed before November 1, 1987 (commonly referred to as an ``old-
law'' sentence).
    Section 3621(e) applies to inmates serving sentences determined by 
Sentencing Guidelines (commonly referred to as ``new-law'' sentences). 
Some inmates with ``old-law'' sentences may be eligible for parole. We 
provide information concerning a parole-eligible inmate's satisfactory 
participation in our drug abuse treatment programs to the United States 
Parole Commission for the Commission's use in making determinations 
under its own regulations (see 28 CFR 2.60) on an inmate's superior 
program achievement.
    Information regarding prior convictions is in the Presentence 
Investigation Report (PSI). The PSI is a court document and is subject 
to review by the defendant and defense counsel. In general, information 
in the PSI about prior convictions may be limited to the fifteen year 
period covered in the Sentencing Commission Criminal History Category.
    If, however, the PSI contains information on prior convictions 
beyond the period covered in the Criminal History Category, we believe 
that we are acting in accordance with Congressional intent when we use 
the listed prior conviction as a disqualifying criterion.
    We do not agree with the contention that inmates who participated 
in drug abuse treatment before the publication of the first interim 
rule should be granted early release regardless of disqualifying 
criteria. We must predicate early release on our implementing 
regulations. The regulations implement our statutory authority by 
defining successful completion of the drug abuse treatment program and 
by qualifying the exercise of the Director's discretion to reduce the 
sentence.
    We issued the regulations as interim rules to extend the early 
release incentive to eligible inmates as quickly as practicable. 
Inmates who participate in our drug abuse treatment program clearly 
benefit from the program's objective of equipping the individual with 
the cognitive, emotional, and behavior skills necessary to choose and 
maintain a drug-free and crime-free lifestyle, even if they are not 
eligible for early release.

Changes Made by the Second Interim Rule

    We recognize the importance of transitional services in drug 
treatment programming and agree with the American Psychiatric 
Association that an enhanced transitional program, such as is available 
in a community-based program, increases the opportunity for a good 
outcome. Transitional services offered within the institution are a 
minimum of one hour per month. Even so, we believe that successful 
completion of the program must include both the institutional and the 
community-based component.
    While we may be able to increase the availability of certain 
transitional services at an institution, we cannot duplicate within the 
institution the environment of community-based transitional services 
(i.e., the evaluation of the inmate in conditions where the inmate is 
reintegrating into the community).
    We therefore further amended the interim regulations to require 
that early release be contingent upon the inmate's completion of 
transitional services in a community-based program (i.e., in a 
Community Corrections Center or on home confinement).
    One result of the revision was that an inmate who we do not place 
in community-based programs because of community safety or custodial 
considerations would not be eligible for early release. The Warden, in 
her/his professional discretion, decides whether to place an inmate in 
a community corrections center. The Warden makes the decision based on 
factors such as the presence of a detainer or the possibility that the 
inmate's placement in a community-based program would pose a danger to 
the public.
    In implementing the second interim rule, we chose to waive the new 
requirement with respect to inmates with a detainer participating in 
the drug abuse treatment program on or before August 17, 1995. These 
inmates could therefore complete transitional services within the 
institution before being turned over to the detaining authority.

Summary of Public Comment on the Second Interim Rule

    We received three comments on the second interim rule. One 
commenter agreed with the change being made, but objected to excluding 
inmates serving a sentence for a non-parolable offense.
    Another commenter objected to any exclusion, stating that 
exclusions were not authorized under 18 U.S.C. 3621(e).
    A third commenter objected on the grounds that the statute did not 
require transitional services. This commenter argued that we moved 
beyond the intent of Congress in a number of ways.
    The commenter objected to the program's name (drug abuse treatment 
program), stating that it was offensive and contrary to the clear 
wording of Congress (substance abuse treatment program). The commenter 
argued that the statute provides for aftercare services when the 
participant leaves the custody of the Bureau of Prisons rather than for 
transitional services. The commenter maintained that requiring 
transitional services delayed or limited possible sentence reductions 
and consequently resulted in greater costs to the government. The 
commenter also maintained that variations in individual sentences 
resulted in inconsistent benefits to eligible inmates.
    In June 2000, the American Psychiatric Association submitted a 
clarification to its original comment. In

[[Page 80747]]

this clarification, the Association agrees with the Bureau's contention 
that it cannot duplicate within a prison institution the environment of 
community-based transitional services.
    The Association, however, does think that transitional services can 
be established within a prison setting that can improve the outcome 
related to successful completion of a residential drug treatment 
program. The Association believes that this can be done by increasing 
the minimum requirement for transitional services within the 
institution from the original minimum of one hour per month. The 
Association does not mean to present an either/or choice of one hour 
per month within the institution or full participation in the 
community-based program.
    The Association recommends that the rule be reviewed with respect 
to the importance of providing substance abuse treatment to prisoners 
requiring external incentives for participation.

Agency Response To Comments on the Second Interim Rule

    As noted above in the response to the first interim rule, we do not 
have statutory authority under 18 U.S.C. 3621(e) to grant early release 
to an inmate who is serving a sentence for an offense committed before 
November 1, 1987 (commonly referred to as an ``old-law'' sentence).
    We disagree with the assertion that 18 U.S.C. 3621(e) does not 
allow for exclusions. By statute, the Director of the Bureau is 
responsible for determining what constitutes successful completion of 
the program and for making the decision to reduce the period of 
custody. The interim rules established procedures, including qualifying 
criteria, for these purposes.
    As for the concerns raised by the third commenter, we wish to 
emphasize the significance of the nomenclature change with respect to 
the basis for the transitional services requirement. We have statutory 
authority under 18 U.S.C. 3621(b) to place inmates in community-based 
programs such as a community corrections center. Such inmates are 
technically still in the custody of the Bureau. Furthermore, because 
the transitional services component is critical to the success of the 
treatment, successful completion of the ``residential substance abuse 
treatment'' program as determined by the Director of the Bureau of 
Prisons, per 18 U.S.C. 3621(e)(2)(A), includes both the unit-based 
program and the following transitional services component.
    The provisions pertaining to ``aftercare'' in the statute are 
separate. Transitional services in a community-based program are an 
essential component of the residential substance abuse program 
envisioned by the statute. As for questions of cost, we do not believe 
that reducing costs for the government outweighs our responsibility to 
protect the public.
    Finally, inconsistent results cited by the third commenter largely 
depend upon the circumstances of inmates present at the initial 
implementation of the interim regulations. In summary, our regulations 
represent our judgment as to successful completion of the program and 
the subsequent discretionary granting of a reduction of the time an 
inmate remains in custody.
    As for the clarification by the American Psychiatric Association, 
we do not believe that it is practicable to enhance transitional 
services within the institution sufficiently to ensure the intended 
results. We acknowledge the importance of providing incentives to 
inmates to participate in drug abuse treatment program. To this 
purpose, the Bureau published a separate proposed rulemaking in the 
Federal Register (published in proposed form on September 20, 2000 at 
65 FR 56840) to address incentives for inmates who would not receive an 
early release benefit.

Summary of Changes in the Third Interim Rule

    The first interim rule attempted to define the term ``crime of 
violence'' pursuant to 18 U.S.C. 924(c)(3). Due to varying 
interpretations of the regulation and caselaw, the Bureau could not 
apply the regulation in a uniform and consistent manner.
    The third interim rule sought to resolve this complication. In the 
third interim rule, we used the discretion allotted to the Director for 
granting a sentence reduction to exclude inmates whose current offense 
is a felony (a) that has as an element, the actual, attempted, or 
threatened use of physical force against the person or property of 
another, or (b) that involved the carrying, possession, or use of a 
firearm or other dangerous weapon or explosives (including any 
explosive material or explosive device), or (c) that by its nature or 
conduct, presents a serious potential risk of physical force against 
the person or property of another, or (d) that by its nature or conduct 
involves sexual abuse offenses committed upon children. Thus, even as 
the Bureau concedes that offenses related to this regulation are ``non-
violent'' offenses, the implementing statute does not mandate that all 
``non-violent'' offenders must receive an early release. The statute 
merely indicates that the sentence may be reduced by the Bureau of 
Prisons.
    As a conforming amendment, the third interim rule correspondingly 
revised the criteria for possible sentence reduction under the 
intensive confinement center program (28 CFR 524.31(a)(3)).
    In the third interim rule, we also addressed the Community 
Corrections Regional Administrator's authority under section 
550.58(c)(3) to disallow any portion of the maximum 12 month reduction 
for an inmate in a community-based program due to a disciplinary 
finding or due to program needs (for example, the inmate has not 
established an adequate release plan).

Summary of Public Comment on the Third Interim Rule

    We received comments from approximately 150 individuals and 
organizations. One hundred thirty-eight individuals submitted identical 
comments. These commenters stated that we were using sentencing factors 
to label non-violent inmates as violent offenders rather than relying 
only on the offense of conviction.
    These commenters urged that the courts should determine whether an 
offense was violent. The commenters also argued that inmates were being 
subjected to double jeopardy because an element used in the court's 
determination of sentence (for example, a gun enhancement) was also 
being used to exclude the inmates from the early release benefit.
    Five other commenters objected to the requirement that transitional 
services must be provided in a community-based program, stating that 
this discriminated against aliens with INS detainers. These commenters 
asserted that denying the early release benefit resulted in excessive 
costs to the government. One of these commenters recommended that 
transitional services be offered in the institution, noting that the 
terms of an INS detainer are not intended to affect classification, 
work, quarters assignments, or other treatment an inmate would 
otherwise receive.
    One commenter objected to the rulemaking on the grounds that 
differing circuit court decisions had resulted in inconsistent 
application of the policy.
    Two commenters objected to the words ``attempted'' and 
``threatened'' in the early release criteria 
(Sec. 550.58(a)(1)(vi)(A)). These commenters further contended that 
intimidation should not be considered a violent offense.
    One commenter objected, arguing that the rule was an arbitrary 
expansion of

[[Page 80748]]

reasonable discretion, and that we were usurping the authority and good 
judgment of the courts and the legislative powers of Congress. This 
commenter asserted that any determination of conduct indicative of a 
violent offense was a matter of fact for the jury's consideration.
    The commenter also maintained that our discretion was directed to 
the proper operation of prisons and not to the determination of the 
length of sentences for those inmates who successfully complete the 
program; that Presentence Investigation Reports were for the court's 
use only; that possession of a weapon or involvement in a conspiracy 
were not violent crimes; that the program did have an economic impact 
because it was specially funded by Congress; that the intent of the 
rule was not rehabilitative, and that the Bureau refused to execute the 
plain meaning of the statute.
    A Public Defender's Office submitted comments stating that the 
regulations unduly restricted eligibility for a remedial program by 
inappropriately expanding the class of convictions deemed violent, by 
excluding prisoners with previous convictions for violent crimes, and 
by excluding all prisoners who were not eligible to participate in 
community-based programs (for example, inmates with INS detainers who 
would be unable to receive transitional services in a community 
corrections center).
    The National Association of Criminal Defense Lawyers and Families 
Against Mandatory Minimums jointly submitted their comments. These 
commenters expressed their support for our stated commitment to provide 
drug abuse treatment services to all inmates with a documented need 
and/or interest. In keeping with this goal, they argued that the early 
release incentive should be made available to the broadest population 
consistent with the statute. They maintained that both the statutory 
language and the legislative history show that Congress intended 
broader application than the rule allows. They objected to the use of 
prior convictions and to felonies being excluded under the Director's 
discretion (550.58(a)(1)(vi)). They argued that some prior convictions 
(for example, foreign convictions) were unreliable, that prior 
convictions are not necessarily predictive.

Agency Response to Public Comment on the Third Interim Rule

    No comments specifically addressed the conforming changes to the 
eligibility criteria for the intensive confinement center or for the 
authority of the Community Corrections Regional Administrator.
    As noted in the preamble of the third interim rule, we excluded 
inmates with certain felonies from receiving the early release 
incentive not because the offense is a ``crime of violence,'' but as an 
exercise of the Director's discretion. Thus, we are no longer 
classifying these offenses as a ``crime of violence.''
    We disagree with the assertion that our regulations raise the issue 
of double jeopardy. Our regulations do not impact the determination of 
the sentence or seek to impose an additional penalty, but instead 
pertain to the separate question of how we convey the sentence 
reduction incentive.
    As noted in the response to the second interim rule, we believe 
that a residential treatment program requires participation in a 
community-based setting. Therefore, inmates who are not eligible to be 
placed in a community-based program (for example, inmates with INS 
detainers) are not eligible for early release.
    As noted above, we do not believe that reducing costs for the 
government outweighs our responsibility to protect the public. 
Furthermore, while a detainer does not generally effect classification, 
work, quarters assignments, etc., due to concerns of a flight risk and 
community safety, detainers are always considered when deciding whether 
to place an inmate in the community.
    As for the concerns raised over the effects of differing circuit 
court decisions, by implementing the third interim rule, we tried to 
address the concerns raised by various circuit courts of appeals. Thus, 
the previous caselaw did not address the revised interpretation of the 
statute. Accordingly, the Bureau again had a uniform national policy. 
As courts interpreted the new rule, there again arose a split in 
circuit court decisions which ultimately, of course, can only be 
resolved by the Supreme Court.
    We disagree with the assertion that our rules are an arbitrary 
expansion of reasonable discretion and that they usurp the authority 
and good judgment of the courts and the legislative powers of Congress. 
Upon successful completion of the program, the statute notes only two 
conditions which the Bureau cannot breach: first, the early release 
incentive is available only to ``non-violent'' offenders; second, the 
incentive may not exceed one year. Congress imposed no other 
restrictions on the manner in which the incentive is granted. 
Specifically, Congress did not mandate that all eligible inmates must 
receive the early release incentive. The reduction in sentence is an 
incentive to be exercised at the discretion of the Bureau of Prisons.
    The assertion that the interim rules have an economic impact 
because the program is specially funded is without merit. Our 
regulations have no direct impact on small businesses.
    We also take issue with assertions that the regulations intent is 
not rehabilitative or that they unduly restrict eligibility for a 
remedial program. Our drug abuse treatment program is open to all 
inmates with a documented need and interest in the program. The 
restrictions in question pertain to the conveyance of a separate 
incentive at our discretion. As noted above, we instituted a separate 
rulemaking to establish further participation incentives for inmates 
who are not eligible for early release.
    Accordingly, upon due consideration of the comments received, we 
finalize the three interim rules without change.

Executive Order 12866

    The Office of Management and Budget (OMB) determined that certain 
rules are part of a category of actions which are not ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866. 
Because this rule falls within that category, OMB did not review it.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive order 13132, this rule 
does not have sufficient federalism implications for which we would 
prepare a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local and tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not

[[Page 80749]]

significantly or uniquely affect small governments. We do not need to 
take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Plain Language Instructions

    We want to make Bureau documents easier to read and understand. If 
you can suggest how to improve the clarity of these regulations, call 
or write to Sarah Qureshi at the address or telephone number listed 
above.

List of Subjects

28 CFR Part 524

    Prisoners.

28 CFR Part 550

    Prisoners.

Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

Subchapter B--Inmate Admission, Classification, and Transfer

PART 524--CLASSIFICATION OF INMATES

Subchapter C--Institutional Management

PART 550--DRUG PROGRAMS

    Accordingly, under the rulemaking authority vested in the Attorney 
General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of 
Prisons, we adopt the interim rules amending 28 CFR parts 524 and 550 
which were published on May 25, 1995 (60 FR 27692), May 17, 1996 (61 FR 
25121), and October 15, 1997 (62 FR 53690) as final wihtout change.

[FR Doc. 00-32772 Filed 12-21-00; 8:45 am]
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