[Federal Register Volume 66, Number 137 (Tuesday, July 17, 2001)]
[Rules and Regulations]
[Pages 37136-37137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17793]


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

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: Final rule.

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

SUMMARY: The U.S. Parole Commission is amending the rule that governs 
reparole decisions for District of Columbia prisoners whose paroles 
have been revoked. The amendment clarifies the Commission's intent 
that, in the case of a prisoner whose parole was revoked by the 
District of Columbia Board of Parole prior to August 5, 2000, the 
Commission may make findings of fact concerning issues that were not 
resolved by the Board at the prisoner's revocation hearing, without 
having to conduct a new revocation hearing. The amendment is intended 
to correct an interpretation according to which the Commission could 
not, at a parole reconsideration hearing, inquire into such matters as 
prior criminal conduct that was not adjudicated by the Board. Because a 
prisoner whose parole has been revoked upon charges sufficient to 
warrant his return to prison stands on the same legal footing as any 
other prisoner who makes an application for parole, the procedures for 
determining that prisoner's suitability for a grant of reparole are the 
procedures for initial parole hearings. In such hearings, the public 
safety requires the Commission to inform itself to the fullest possible 
extent concerning the prisoner's prior criminal conduct.

EFFECTIVE DATE: August 16, 2001.

FOR FURTHER INFORMATION CONTACT: Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd, Chevy Chase, Maryland 20815, 
telephone (301) 492-5959. Questions about this publication are welcome, 
but inquiries concerning individual cases cannot be answered over the 
telephone.

SUPPLEMENTARY INFORMATION: Under the National Capital Revitalization 
and Self-Government Improvement Act of 1997, Public Law 105-33 (at D.C. 
Code Section 24-1231), the U.S. Parole Commission assumed jurisdiction 
to make parole, reparole, and parole revocation decisions for all 
eligible District of Columbia felony offenders, effective August 5, 
2000. Prior to that effective date, and for a two-year period 
commencing August 5, 1998, the Commission had jurisdiction only to 
grant paroles and reparoles to eligible District of Columbia prisoners, 
while the D.C. Board of Parole retained jurisdiction to supervise 
District of Columbia parolees and to revoke their paroles. Under the 
procedures of the D.C. Board of Parole, when a decision was made to 
revoke parole on charges sufficiently serious to return the parolee to 
prison, the Board would continue the revoked parolee to a 
reconsideration hearing at a later date. Only at such a reconsideration 
hearing would the Board consider the offender for a new grant of 
parole, or ``reparole,'' pursuant to D.C. Code Section 24-206(a). Under 
that statute a prisoner whose parole has been revoked ``* * * unless 
subsequently reparoled, shall serve the remainder of the sentence 
originally imposed less any commutation for good conduct which may be 
earned by him after his return from custody.'' Accordingly, 
reconsideration hearings for such offenders, whether conducted by the 
D.C. Board of Parole prior to August 5, 1998, or by the U.S. Parole 
Commission after August 5, 1998, have been conducted under the 
procedures applicable to initial parole hearings.
    When the Commission adopted a rule of procedure to govern reparole 
decisions pursuant to D.C. Code Section 24-206(a), it required that 
reparole hearings would be conducted according to the procedures set 
forth at 28 CFR 2.72 for initial parole hearings, and specified that 
``* * * the Commission's decision to grant or deny reparole on the 
parole violation term shall be made by reference to the reparole 
guidelines at Sec. 2.21.'' See 28 CFR 2.81(a) and (d), originally 
published at 63 FR 39183 (July 21, 1998), as 28 CFR 2.87, recodified at 
as 28 CFR 2.81 at 65 FR 45894 (July 26, 2000). These guidelines require 
the Commission to assess the seriousness of the prisoner's past 
misconduct while on parole.
    At the time the Commission adopted its rule governing reparole 
decisions, it did not anticipate that it would be faced with a 
significant number of reparole applicants whose paroles had been 
revoked by the D.C. Board of Parole on charges sufficient to warrant 
revocation and return to prison, but without resolving all of the 
charges concerning the offender's conduct while on parole. For example, 
the Board would revoke parole on non-criminal charges, and make ``no 
finding'' on criminal charges if such charges were pending trial or had 
been dismissed. In order to determine the offender's suitability for a 
grant of reparole, and to apply the guidelines at 28 CFR 2.21, the 
Commission is obliged to consider all relevant information concerning 
the offender's conduct during his previous periods of parole, 
notwithstanding the Board's decision not to resolve all such matters at 
the revocation hearing. The Commission's duty to protect the public 
safety requires it to be fully apprised of each prisoner's real 
potential for further criminal conduct before it can responsibly grant 
a reparole.
    The interpretation has been urged upon the Commission that, because 
28 CFR 2.81 incorporates by reference the ``reparole guidelines'' at 28 
CFR 2.21, it also incorporates the provision at Sec. 2.21 that new 
criminal conduct ``. . . may be determined either by a new federal, 
state, or local conviction or by an independent finding by the 
Commission at [a] revocation hearing.'' See 28 CFR 2.21(a)(2) (2000). 
Proponents of this view believe that the Commission cannot consider any 
allegations of criminal conduct that were not adjudicated by the Board 
of Parole at the revocation hearing. This interpretation is incorrect 
because Sec. 2.21(a)(2) is not a

[[Page 37137]]

``guideline'' for decision making, and was intended by the Commission 
to apply solely in the context of a reparole decision made by the 
Commission during a Commission-conducted revocation proceeding. Under 
the rules of the Commission for federal offenders (which are now 
applied to District of Columbia offenders whose revocation hearings are 
conducted by the Commission after August 5, 2000), the Commission will 
attempt to address and resolve, at the revocation hearing, all 
allegations of criminal and non-criminal conduct bearing upon the 
period of parole in question. The reparole guidelines at Sec. 2.21 will 
be assessed based upon the Commission's findings of fact, and a 
reparole decision will be issued by the Commission at the same time as 
the revocation decision itself. Because this was not the practice of 
the D.C. Board of Parole, the Commission did not intend that the fact-
finding provisions of Sec. 2.21(a)(2) would be applicable in the 
context of a reconsideration hearing conducted for a D.C. offender 
whose parole was previously revoked by the D.C. Board of Parole. When 
issues of fact relevant to the question of reparole have been left 
unresolved by the Board, the Commission must be able to address them at 
the reparole stage.
    When the Commission adopted 28 CFR 2.81, the Commission intended 
that such unresolved issues of fact be determined at a reconsideration 
hearing under the procedures of 28 CFR 2.72, just as in the case of any 
other parole applicant with unadjudicated allegations bearing upon the 
prisoner's suitability for release to the community. At an initial 
parole hearing, there may be unadjudicated allegations of criminal 
conduct, including dismissed criminal charges and other allegations of 
unlawful behavior described in the presentence investigation report or 
other documents, which the Commission must resolve in order to 
determine whether the prisoner is safe to release on parole. Under Rule 
32(c)(1) of the Federal Rules of Criminal Procedure, federal sentencing 
judges have the option, when allegations in a presentence investigation 
report are challenged at the sentencing hearing, of determining that 
``no finding is necessary.'' In such cases, the Commission is permitted 
to make an independent determination of fact notwithstanding the 
court's decision to make ``no finding.'' See, e.g., Ochoa v. United 
States, 819 F.2d 366 (2d. Cir. 1987) and Lewis v. Beeler, 949 F.2d 
325(10th Cir. 1991). The same principle applies to a reparole applicant 
whose parole was revoked by the D.C. Board of Parole. Sparks v. Gaines, 
2001 WL 568004 (D.D.C. May 17, 2001).
    Moreover, the due process that governs the decision to revoke 
parole and to return a parolee to prison under Morrissey v. Brewer, 408 
U.S. 471 (1972), no longer applies once the revocation proceeding is 
concluded, and the parolee has been returned to prison. Under D.C. Code 
Section 24-206(a), the offender is legally presumed to have been 
returned to prison to serve the remainder of his sentence ``unless 
subsequently reparoled,'' so the Commission's fact-finding procedures 
may constitutionally be the same for parole as well as reparole 
applicants.
    The Commission is therefore amending 28 CFR 2.81(d) to clarify its 
intent that it will apply the guidelines of Sec. 2.21, to call reparole 
decisions, but will follow the fact-finding procedures that apply to 
initial hearings under Sec. 2.72. See 28 CFR 2.19(c), incorporated for 
D.C. offenders at 28 CFR 2.89 (2000).

Implementation

    This amendment to 28 CFR 2.81 shall be fully retroactive to all 
reparole decisions of the Commission from August 5, 1998, forward, and 
shall apply to all reparole decisions made by the Commission in the 
future with respect to offenders whose paroles were revoked by the D.C. 
Board of Parole. Moreover, the amended rule shall also apply to any 
reparole consideration by the Commission where new information has 
arisen since the time of the offender's revocation hearing, and that 
information is relevant to the offender's suitability for reparole. 
This interpretative rule conforms to Commission's original intent, and 
does not constitute in any respect a change in the Commission's 
decision-making policy or practice.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this final rule does 
not constitute a significant rule within the meaning of Executive Order 
12866. The final 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), and is deemed by the 
Commission to be a rule of agency practice that does not substantially 
affect the rights or obligations of non-agency parties pursuant to 
Section 804(30(c) of the Congressional Review Act.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
Parole.

The Final Rule

    Accordingly, the U.S. Parole Commission is adopting 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. Section 2.81 is amended to add the following two sentences to 
the end of paragraph (d):


Sec. 2.81  Reparole decisions.

* * * * *
    (d) * * * If the prisoner is serving a period of imprisonment 
imposed upon revocation of his parole by the D.C. Board of Parole, the 
Commission shall consider all available and relevant information 
concerning the prisoner's conduct while on parole, including any 
allegations of criminal or administrative violations left unresolved by 
the Board, pursuant to the procedures applicable to initial hearings 
under Sec. 2.72 and Sec. 2.19(c). The same procedures shall apply in 
the case of any new information concerning criminal or administrative 
violations of parole presented to the Commission for the first time 
following the conclusion of a revocation proceeding that resulted in 
the revocation of parole and the return of the offender to prison.

    Dated: July 6, 2001.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 01-17793 Filed 7-16-01; 8:45 am]
BILLING CODE 4410-31-U