[Federal Register Volume 67, Number 13 (Friday, January 18, 2002)]
[Rules and Regulations]
[Pages 2568-2571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1308]


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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: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is amending its rules of procedure 
that govern the revocation process for District of Columbia parolees 
who are arrested and held in the District of Columbia on warrants 
charging them with violations of parole. The amended rules implement a 
decision of the U.S. District Court for the District of Columbia, in 
Long v. Gaines, Civ. Action No. 01-0010 (EGS), dated November 21, 2001, 
which obliges the Commission to promulgate amendments to its 
regulations so as to conform them to the requirements of constitutional 
due process as interpreted by the Court. The amended rules impose new 
deadlines for making determinations of probable cause (five days from 
arrest), for holding the final revocation hearing (sixty-five days from 
arrest), and for issuing final decisions as to revocation (eighty-six 
days after arrest). The amended rules also include other procedures 
designed to comply with the court's order.

DATES: This interim rule will take effect on February 19, 2002. 
Comments must be received by March 19, 2002.

ADDRESSES: Send comments to Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 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: In Long v. Gaines, 167 F. Supp. 2d 75 
(D.D.C. 2001), the U.S. District Court for the District of Columbia 
held that the Parole Commission's rules governing the revocation 
process for District of Columbia parolees are unconstitutional with 
respect to the applicable time deadlines for making determinations of 
probable cause and completing the revocation process. Under the 
Commission's current rules, a parolee who is arrested on a warrant 
charging a violation of parole is entitled to a prompt preliminary 
interview, normally conducted by a parole officer other than the 
officer who supervised the parolee. The Commission must make a 
determination of probable cause ``as expeditiously as possible'' if the 
interviewing officer recommends a finding of ``no probable cause,'' and 
within 21 days of the interview if the interviewing officer recommends 
that probable cause be found. A local revocation hearing must be held 
within 60 days of the probable cause determination if the parolee 
denies violating parole and has not been convicted of a new crime. 
Thereafter, the Commission must issue a final decision within 21 days 
of the revocation hearing, excluding weekends and holidays. See 28 CFR 
2.101 through 2.105 (2001). Because the Commission customarily holds 
preliminary interviews within three to five days of arrest, these rules 
provide for an outside limit of 86 days from arrest for the

[[Page 2569]]

revocation hearing to be held, and 107 days from arrest for the final 
decision to be issued. (Parolees who are convicted of new crimes are 
only entitled to revocation hearings within 90 days of arrest; the 
rules governing such offenders are not changed by these amendments.)
    However, in Long v. Gaines the court has held that the due process 
clause of the U.S. Constitution requires that the Commission make 
determinations of probable cause no later than five days from arrest, 
that revocation hearings be held not later than 65 days from arrest, 
and that final decisions be issued no later than 86 days from arrest. 
Except in the case of parolees convicted of new crimes, the Commission 
has now been enjoined to operate within these deadlines. The court also 
held that the Commission must ensure that: (1) The parolee is given 
notice of the time and purpose of the probable cause hearing and the 
charged violations; (2) prior to the revocation hearing, the parolee is 
provided with disclosure of the evidence to be relied upon by the 
Commission in determining whether parole was violated and, if so, 
whether to revoke parole; and (3) the ultimate decisionmaker is 
informed of all the parolee's arguments and evidence prior to rendering 
a final decision.
    The amended rules implement these requirements. Although not all of 
the court's requirements necessitate departures from the Commission's 
current practice, the amended rules significantly differ from the 
Commission's current practice by adopting the court's new deadlines, 
and by requiring that Commission hearing examiners conduct probable 
cause hearings in the District of Columbia within five days of the 
parolee's arrest. The Commission has delegated to these examiners the 
authority to make a probable cause decision at the conclusion of each 
hearing. The examiner will also have the authority to order the release 
of the parolee if no probable cause is found, and to set a date for the 
revocation hearing if probable cause is found.

Implementation

    The Commission's regulations at 28 CFR 2.98 through 2.105, as 
amended by this publication, will be followed by the Commission in the 
case of all District of Columbia Code parolees who are arrested and 
held in the District of Columbia on warrants charging a violation or 
violations of parole, until the taking effect of final rules 
promulgated by the Commission. However, these interim amendments will 
also retain the status of proposed rules for the purposes of the public 
comment requirement of 5 U.S.C. 553 (b). The Commission will withhold 
promulgation of final rules until completion of the comment and 
objection process accorded to the plaintiffs in Long v. Gaines. These 
regulations do not supersede or replace any representation made by the 
defendants in the Compliance Plan approved by the district court on 
November 21, 2001.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that these interim 
regulations do not constitute a significant rule within the meaning of 
Executive Order 12866. The amended rules 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 are 
deemed by the Commission to be rules of agency practice that do 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.

The Amended Rules

    Accordingly, the U.S. Parole Commission is adopting the following 
amendments 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 2.98 is amended as follows:
    a. Amend paragraph (a)(1) by removing ``preliminary interview'' and 
adding in its place ``probable cause hearing''.
    b. Revise paragraph (f) to read as follows:


Sec. 2.98  Summons to appear or warrant for retaking of parolee.

* * * * *
    (f) A summons or warrant issued pursuant to this section shall be 
accompanied by a warrant application (or other notice) stating:
    (1) The charges against the parolee;
    (2) The specific reports and other documents upon which the 
Commission intends to rely in determining whether a violation occurred 
and whether to revoke parole;
    (3) Notice of the Commission's intent, if the parolee is arrested 
within the District of Columbia, to hold a probable cause hearing 
within five days of the parolee's arrest;
    (4) A statement of the purpose of the probable cause hearing;
    (5) The days of the week on which the Commission regularly holds 
its dockets of probable cause hearings at the Central Detention 
Facility;
    (6) The parolee's procedural rights in the revocation process; and
    (7) The possible actions that the Commission may take.
* * * * *

    3. Section 2.99 is amended as follows:
    a. Revise paragraph (b) to read as set forth below.
    b. Amend paragraph (e) by removing ``preliminary interview'' and 
adding in its place ``probable cause hearing''.


Sec. 2.99  Execution of warrant and service of summons.

* * * * *
    (b) Upon the arrest of the parolee, the officer executing the 
warrant shall deliver to the parolee a copy of the warrant application 
(or other notice provided by the Commission) containing the information 
described in Sec. 2.98 (f).
* * * * *

    4. Section 2.101 is revised to read as follows:


Sec. 2.101  Probable cause hearing and determination.

    (a) Hearing. A parolee who is retaken and held in custody in the 
District of Columbia on a warrant issued by the Commission (or by the 
Board of Parole of the District of Columbia), and who has not been 
convicted of a new crime, shall, no later than five days from the date 
of such retaking, be given a probable cause hearing by an examiner of 
the Commission. The purpose of the probable cause hearing is to 
determine whether there is probable cause to believe that the parolee 
has violated parole as charged, and if so, whether a local or 
institutional revocation hearing should be conducted.
    (b) Notice and opportunity to postpone hearing. Prior to the 
commencement of each docket of probable cause hearings, a list of the 
parolees who are scheduled for probable cause hearings, together with a 
copy of the warrant application for each parolee, shall be sent to the 
DC Public Defender Service. At or before the probable cause hearing, 
the parolee (or the parolee's attorney) may submit a written request 
that the hearing be postponed for any period up to thirty days, and the 
Commission shall ordinarily grant such requests. Prior to the 
commencement of

[[Page 2570]]

the probable cause hearing, the examiner shall advise the parolee that 
the parolee may accept representation by the attorney from the DC 
Public Defender Service who is assigned to that docket, waive the 
assistance of an attorney at the probable cause hearing, or have the 
probable cause hearing postponed in order to obtain another attorney 
and/or witnesses on his behalf. In addition, the parolee may request 
the Commission to require the attendance of adverse witnesses (i.e., 
witnesses who have given information upon which revocation may be 
based) at a postponed probable cause hearing. Such adverse witnesses 
may be required to attend either a postponed probable cause hearing, or 
a combined postponed probable cause and local revocation hearing, 
provided the parolee meets the requirements of Sec. 2.102(a) for a 
local revocation hearing. The parolee shall also be given notice of the 
time and place of any postponed probable cause hearing.
    (c) Review of the charges. At the beginning of the probable cause 
hearing, the examiner shall ascertain that the notice required by 
Sec. 2.99 (b) has been given to the parolee. The examiner shall then 
review the violation charges with the parolee and shall apprise the 
parolee of the evidence that has been submitted in support of the 
charges. The examiner shall ascertain whether the parolee admits or 
denies each charge listed on the warrant application (or other notice 
of charges), and shall offer the parolee an opportunity to rebut or 
explain the allegations contained in the evidence giving rise to each 
charge. The examiner shall also receive the statements of any witnesses 
and documentary evidence that may be presented by the parolee. At a 
postponed probable cause hearing, the examiner shall also permit the 
parolee to confront and cross-examine any adverse witnesses in 
attendance, unless good cause is found for not allowing confrontation. 
Whenever a probable cause hearing is postponed to secure the appearance 
of adverse witnesses, the Commission will ordinarily order a combined 
probable cause and local revocation hearing as provided in paragraph 
(i) of this section.
    (d) Probable cause determination. At the conclusion of the probable 
cause hearing, the examiner shall determine whether probable cause 
exists to believe that the parolee has violated parole as charged, and 
shall so inform the parolee. The examiner shall then take either of the 
following actions:
    (1) If the examiner determines that no probable cause exists for 
any violation charge, the examiner shall order that the parolee be 
released from the custody of the warrant and either reinstated to 
parole, or discharged from supervision if the parolee's sentence has 
expired.
    (2) If the hearing examiner determines that probable cause exists 
on any violation charge, and the parolee has requested (and is eligible 
for) a local revocation hearing in the District of Columbia as provided 
by Sec. 2.102 (a), the examiner shall schedule a local revocation 
hearing for a date that is within 65 days of the parolee's arrest. 
After the probable cause hearing, the parolee (or the parolee's 
attorney) may submit a written request for a postponement. Such 
postponements will normally be granted if the request is received no 
later than fifteen days before the date of the revocation hearing. A 
request for a postponement that is received by the Commission less than 
fifteen days before the scheduled date of the revocation hearing will 
be granted only for a compelling reason. The parolee (or the parolee's 
attorney) may also request, in writing, a hearing date that is earlier 
than the date scheduled by the examiner, and the Commission will 
accommodate such request if practicable.
    (e) Institutional revocation hearing. If the parolee is not 
eligible for a local revocation hearing as provided by Sec. 2.102 (a), 
or has requested to be transferred to an institution for his revocation 
hearing, the Commission will request the Bureau of Prisons to designate 
the parolee to an appropriate institution, and an institutional 
revocation hearing shall be scheduled for a date that is within ninety 
days of the parolee's retaking.
    (f) Digest of the probable cause hearing. At the conclusion of the 
probable cause hearing, the examiner shall prepare a digest summarizing 
the evidence presented at the hearing, the responses of the parolee, 
and the examiner's findings as to probable cause.
    (g) Release notwithstanding probable cause. Notwithstanding a 
finding of probable cause, the Commission may order the parolee's 
reinstatement to supervision or release pending further proceedings, if 
it determines that:
    (1) Continuation of revocation proceedings is not warranted despite 
the finding of probable cause; or
    (2) Incarceration pending further revocation proceedings is not 
warranted by the frequency or seriousness of the alleged violation(s), 
and the parolee is neither likely to fail to appear for further 
proceedings, nor is a danger to himself or others.
    (h) Conviction as probable cause. Conviction of any crime committed 
subsequent to release by a parolee shall constitute probable cause for 
the purposes of this section, and no probable cause hearing shall be 
conducted unless a hearing is needed to consider additional violation 
charges that may be determinative of the Commission's decision whether 
to revoke parole.
    (i) Combined probable cause and local revocation hearing. A 
postponed probable cause hearing may be conducted as a combined 
probable cause and local revocation hearing, provided such hearing is 
conducted within 65 days of the parolee's arrest and the parolee has 
been notified that the postponed probable cause hearing will constitute 
his final revocation hearing. The Commission's policy is to conduct a 
combined probable cause and local revocation hearing whenever adverse 
witnesses are required to appear and give testimony with respect to 
contested charges.
    (j) Late received charges. If the Commission is notified of an 
additional charge after probable cause has been found to proceed with a 
revocation hearing, the Commission may:
    (1) Remand the case for a supplemental probable cause hearing if 
the new charge may be contested by the parolee and possibly result in 
the appearance of witness(es) at the revocation hearing;
    (2) Notify the parolee that the additional charge will be 
considered at the revocation hearing without conducting a supplemental 
probable cause hearing; or
    (3) Determine that the new charge shall not be considered at the 
revocation hearing.

    5. Section 2.102 (f) is revised to read as follows:


Sec. 2.102  Place of revocation hearing.

* * * * *
    (f) A local revocation hearing shall be held not later than sixty-
five days from the retaking of the parolee on the parole violation 
warrant. An institutional revocation hearing shall be held within 
ninety days of the retaking of the parolee on the parole violation 
warrant. If the parolee requests and receives any postponement, or 
consents to any postponement, or by his actions otherwise precludes the 
prompt completion of revocation proceedings in his case, the above-
stated time limits shall be correspondingly extended.

    6. Section 2.103 is amended by revising paragraph (d) and adding 
paragraphs (f) and (g) to read as follows:


Sec. 2.103  Revocation hearing procedure.

* * * * *

[[Page 2571]]

    (d) All evidence upon which a finding of violation may be based 
shall be disclosed to the alleged violator before the revocation 
hearing. Such evidence shall include the Community Supervision 
Officer's letter summarizing the parolee's adjustment to parole and 
requesting the warrant, all other documents describing the charged 
violation or violations of parole, and any additional evidence upon 
which the Commission intends to rely in determining whether the charged 
violation or violations, if sustained, would warrant revocation of 
parole. If the parolee is represented by an attorney, the attorney 
shall be provided, prior to the revocation hearing, with a copy of the 
parolee's presentence investigation report, if such report is available 
to the Commission. If disclosure of any information would reveal the 
identity of a confidential informant or result in harm to any person, 
that information may be withheld from disclosure, in which case a 
summary of the withheld information shall be disclosed to the parolee 
prior to the revocation hearing.
* * * * *
    (f) At a local revocation hearing, the Commission shall secure the 
presence of the parolee's Community Supervision Officer, or a 
substitute Community Supervision Officer, who shall bring the parolee's 
supervision file, if the parolee's Community Supervision Officer is not 
available. At the request of the hearing examiner, such officer shall 
provide testimony at the hearing concerning the parolee's adjustment to 
parole.
    (g) After the revocation hearing, the hearing examiner shall 
prepare a summary of the hearing that includes a description of the 
evidence against the parolee and the evidence submitted by the parolee 
in defense or mitigation of the charges, a summary of the arguments 
against revocation presented by the parolee, and the examiner's 
recommended decision. The hearing examiner's summary, together with the 
parolee's file (including any documentary evidence and letters 
submitted on behalf of the parolee), shall be given to another examiner 
for review. When two hearing examiners concur in a recommended 
disposition, that recommendation, together with the parolee's file and 
the hearing examiner's summary of the hearing, shall be submitted to 
the Commission for decision.
* * * * *

    7. Section 2.104 (a)(1) is amended by removing ``preliminary 
interview'' and adding in its place ``probable cause hearing''.
    8. Section 2.105 (c) is revised to read as follows:


Sec. 2.105  Revocation decisions.

* * * * *
    (c) Decisions under this section shall be made upon the concurrence 
of two Commissioner votes, except that a decision to override an 
examiner panel recommendation shall require the concurrence of three 
Commissioner votes. The final decision following a local revocation 
hearing shall be issued within 86 days of the retaking of the parolee 
on the parole violation warrant. The final decision following an 
institutional revocation hearing shall be issued within 21 days of the 
hearing, excluding weekends and holidays.
* * * * *

    Dated: January 10, 2002.
Edward F. Reilly, Jr.,
Chairman, Parole Commission.
[FR Doc. 02-1308 Filed 1-17-01; 8:45 am]
BILLING CODE 4410-31-P