[Federal Register Volume 67, Number 178 (Friday, September 13, 2002)]
[Rules and Regulations]
[Pages 57944-57947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23154]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Prisoners Serving Sentences Under the United States and District of 
Columbia Codes

AGENCY: United States Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is amending procedures governing 
parole proceedings for District of Columbia offenders. The amendments 
provide for the application of the paroling policy guidelines at 28 CFR 
2.80 to several groups of DC offenders previously excepted from such 
application: adult offenders who had hearings from August 5, 1998 to 
December 3, 2000 under the former version of the Sec.  2.80 guidelines 
and who had positive or negative points assessed for post-imprisonment 
conduct; and youth offenders sentenced under the D.C. Youth 
Rehabilitation Act. The amendments for youth offenders also provide for 
rehearings on an annual schedule, and allow for an advancement of a 
presumptive release date for program achievement without any 
presumptive limitation on the amount of the advancement. Finally, the 
Commission is eliminating its requirement for an initial report 
following the release of a prisoner on supervision, and making a number 
of clarifications and corrections in the guidelines and other rules.

EFFECTIVE DATE: These rule amendments are effective October 15, 2002.

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: On August 5, 1998, pursuant to the National 
Capital Revitalization and Self-Government Improvement Act of 1997 
(Pub. L. 105-33), the U.S. Parole Commission assumed the function of 
making parole release decisions for District of Columbia imprisoned 
felons. (Two years later, under the same Act, the Commission took over 
the functions of imposing and modifying release conditions for D.C. 
offenders on parole or supervised release, and revoking parole or 
supervised release for violations of release conditions.) The Act 
required the Commission to exercise its authority under the laws and 
regulations of the District of Columbia, but gave the Commission the 
authority to amend and supplement any regulation interpreting or 
implementing parole laws. D.C. Code 24-1231(a)(1) and (c). Using this 
latter authority, the Commission supplemented the decision-making 
guidelines of the former District of Columbia Board of Parole with 
guidelines that retained the basic structure of the D.C. Board's 
guidelines (with a point assignment table comprised of a salient factor 
score and the scoring of pre- and post-incarceration factors, and the 
total point score indicating whether parole should be granted or 
denied). But the Commission refined the assessment of pre-incarceration 
factors regarding the probability that the prisoner would commit a 
violent offense if released, increased the reward for superior program 
achievement in prison programs, and specified rehearing ranges (as 
established by the assessment of points for pre-incarceration factors) 
for those prisoners denied parole. See 63 FR 39172 (July 21, 1998). 
These guidelines were promulgated at 28 CFR 2.80.
    In November, 2000, the Commission amended the Sec.  2.80 
guidelines, retaining the point assignment table, but converting the 
rehearing ranges to ``base guideline ranges'' that indicated the total 
prison time to be served by the prisoner as a result of the assessment 
of pre-incarceration factors. See 65 FR 70663 (Nov. 27, 2000). Post-
incarceration factors such as prison misconduct and superior program 
achievement were addressed under the revised guidelines by adding or 
subtracting ranges of months from the base guideline range, rather 
adding or subtracting points to determine a total point score. The 
conversion from rehearing to prison time ranges allowed the Commission 
to set presumptive release dates for DC prisoners up to 36 months from 
the date of the hearing. The Commission prospectively applied the new 
guidelines to those adult offenders who were given initial hearings on 
or after December 4, 2000. 65 FR 70664. It also authorized retroactive 
application to those prisoners who had hearings under the original 
Sec.  2.80 guidelines (redesignated to the appendix to Sec.  2.80), as 
long as the prisoner had no points added for post-imprisonment 
misconduct or subtracted for superior program achievement under the 
original guidelines. Id. If the prisoner previously had any points 
added for prison misconduct or subtracted for superior program 
achievement, the original Sec.  2.80 guidelines would continue to be 
applied. The Commission was not prepared at that time to devote scarce 
resources to the job of retroactive application of the new guidelines. 
Retroactive application in these cases would require the comparison of 
different rules for handling post-imprisonment conduct so as to ensure 
that the prisoner was not disadvantaged in the retroactive use of the 
new guidelines. The Commission has determined that there are sufficient 
resources to proceed with retroactive application of the Sec.  2.80 
guidelines without undue difficulty.
    Up to this time D.C. youth offenders sentenced under the Youth 
Rehabilitation Act and eligible for parole have been considered for 
parole under the former Sec.  2.80 guidelines,\1\ regardless of when 
the Commission conducted the initial hearing. But the presumptive date 
system of the present Sec.  2.80 guidelines clearly may be harmonized 
with the indeterminate nature of a YRA commitment, as demonstrated by 
the Commission's experience in making decisions for federal youth 
offenders sentenced under the former Federal Youth Corrections Act (18 
U.S.C. 5005 et seq.). Consequently, the Commission is also extending 
the present Sec.  2.80 guidelines to youth offenders sentenced under 
the YRA, with some modifications regarding the timing of rehearings and 
the use of program achievement in determining the prisoner's release 
date. The Commission is adopting a 12-month rehearing schedule for YRA 
offenders to be consistent with the parole practices for the federal 
youth offenders.\2\ A rehearing will also be scheduled on the

[[Page 57945]]

next available docket after the Commission is informed by institutional 
staff that the YRA offender has completed his prison program plan. This 
also comports with the Commission's present practice for federal youth 
offenders and YRA prisoners. With regard to the weighing of program 
accomplishments in the release decision for DC youth offenders, the 
Commission will refrain from using the rules at Sec.  2.80(k)-(m) on 
awarding superior program achievement and subtracting the award in 
determining the total guideline range. The Commission will use the same 
policy that it adopted for federal youth offenders at Sec.  2.64(e), 
weighing program achievement and response to treatment with other 
factors to make the parole release decision, without setting a limit on 
the reduction of the presumptive parole date for these reasons.
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    \1\ See D.C. Code 24-801 et seq.. Like adult D.C. offenders, 
offenders sentenced under the YRA who committed their crimes after 
August 4, 2000 are not eligible for parole. D.C. Code 24-804(c).
    \2\ All remaining FYCA prisoners are serving terms of seven 
years or more and thus all interim hearings are held on a 12-month 
schedule for these prisoners.
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    Through these amendments, the Commission will extend the benefit of 
the presumptive date system (i.e., increased certainty regarding the 
expected release date) to virtually all DC offenders, reduce the 
variety of guidelines and parole procedures used for DC offenders, and 
simplify training for agency personnel.
    The Commission is also clarifying or correcting guideline 
instructions and other procedural rules. An amendment at Sec.  2.75 
expressly allows the Commission to remand a case for a rehearing before 
a decision granting or denying parole is made, in order to obtain 
further information. An amendment to the instructions for scoring 
Category III of the guidelines Point Assignment Table clarifies that 
the death of the victim must occur in any type of violent offense for 
the three points to be added under that guideline. Editorial changes at 
Sec. Sec.  2.82, 2.86, and 2.219 are made to bring the language of the 
respective rule in line with other provisions, or to correct minor 
errors.
    There is an error in the base guideline range table of Sec.  
2.80(h) that must be corrected. The ranges in the table were developed 
by determining, under the appendix to Sec.  2.80 guidelines, the number 
of rehearings it would take for the prisoner to reach a total point 
score that indicated parole should be granted, and multiplying this 
number by the rehearing range. For a prisoner who had a base point 
score of 10 at his initial hearing and then had one point deducted at 
the initial hearing and each subsequent rehearing for ordinary program 
achievement, the Commission would normally conduct six rehearings 
before the prisoner would obtain a total point score of three under the 
former Sec.  2.80 guidelines, the score which indicates parole should 
be granted at a rehearing. The rehearing range for a prisoner with a 
base point score of 10 is 26-32 months. Multiplying six by this 
rehearing range results in a base guideline range of 156-192 months, 
not the range of 136-172 presently listed in the base guideline range 
table, and a correction of this range in the table is necessary.
    Other changes include amendments to the regulations governing 
actions for YRA offenders to clarify that only YRA offenders who 
committed their crimes before August 5, 2000 are eligible for parole 
and unconditional discharge from supervision. Parole was prospectively 
abolished for all D.C. Code offenders, including offenders sentenced 
under the YRA, by the Sentencing Reform Emergency Amendment Act of 
2000, D.C. Act 13-410 (Aug. 11, 2000).
    Finally, the Commission is eliminating the requirement in its rules 
that, within 90 days of a prisoner's release to supervision, the Court 
Services and Offender Supervision Agency (CSOSA) supervision officer 
must file an initial supervision report. This rule was promulgated 
during the transitional period when the supervision of parolees was 
being transferred from the jurisdiction of the DC Board of Parole to 
CSOSA. Now that the Commission and CSOSA have established a successful 
working relationship, this reporting requirement is no longer necessary 
and poses an undue burden to CSOSA staff.

Implementation

    The Commission will begin retroactively applying the Sec.  2.80 
guidelines to adult and youth offenders previously heard under the 
appendix to Sec.  2.80 guidelines, and to all youth offenders who have 
yet to have an initial hearing, at any hearing held on or after October 
15, 2002. All other rule amendments described in this publication will 
also be implemented effective October 15, 2002. The correction to the 
base guideline range table at Sec.  2.80(h) will only be prospectively 
applied to prisoners who are given an initial hearing or a revocation 
hearing (for a YRA parole violator) on or after October 15, 2002, and 
will not be retroactively applied to prisoners who had hearings prior 
to that date.

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(3)(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 
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).

Subpart C--District of Columbia Code Prisoners and Parolees

    2. Section 2.75 is amended by revising paragraphs (a)(1) and (2) to 
read as follows:


Sec.  2.75  Reconsideration proceedings.

    (a)(1) Following an initial or subsequent hearing, the Commission 
may--
    (i) Set an effective date of parole within nine months of the date 
of the hearing;
    (ii) Set a presumptive parole date at least ten months but not more 
than three years from the date of the hearing;
    (iii) Continue the prisoner to the expiration of sentence if the 
prisoner's mandatory release date is within three years of the date of 
the hearing;
    (iv) Schedule a reconsideration hearing at three years from the 
month of the hearing; or
    (v) Remand the case for a rehearing on the next available docket 
(but no later than 180 days from the date of the hearing) for the 
consideration of additional information.
    (2) Exceptions. (i) With respect to the rule on three-year 
reconsideration hearings. If the prisoner's current offense behavior 
resulted in the death of a victim and, at the time of the hearing, the 
prisoner must serve more than three years before reaching the minimum 
of the applicable guideline range, the Commission may schedule a 
reconsideration hearing at a date up to five years from the month of 
the last hearing, but not beyond the minimum of the applicable 
guideline range.

[[Page 57946]]

    (ii) With respect to youth offenders. Regardless of whether a 
presumptive parole date has been set, a reconsideration hearing shall 
be conducted every twelve months for a youth offender, and on the next 
available docket after the Commission is informed that the prisoner has 
completed his program plan.
* * * * *

    3. Section 2.80 is amended as follows:
    a. Revise paragraph (a);
    b. Revise paragraph (f), Point Assignment Table, Category III, A;
    c. Amend paragraph (h) by deleting ``136-172'' in the table of base 
guideline ranges, and substitute ``156-192'';
    d. Remove the Appendix to Sec.  2.80 and add new paragraph (o).
    The revised and added text reads as follows:


Sec.  2.80  Guidelines for D.C. Code offenders.

    (a)(1) Applicability in general. Except as provided below, the 
guidelines in paragraphs (b)-(n) of this section apply at an initial 
hearing or rehearing conducted for any prisoner.
    (2) Reparole decisions. Reparole decisions shall be made in 
accordance with Sec.  2.81.
    (3) Youth offenders. A prisoner sentenced under the Youth 
Rehabilitation Act shall be considered for parole under these 
guidelines pursuant to paragraph (a)(1) of this section, except that 
the prisoner shall be given rehearings in accordance with the schedule 
at Sec.  2.75(a)(2)(ii) and the prisoner's program achievements shall 
be considered in the parole release decision in accordance with Sec.  
2.106. The guidelines at paragraphs (k)-(m) of this section for 
awarding superior program achievement and subtracting the award in 
determining the total guideline range shall not apply.
    (4) Prisoners considered under the guidelines of the former 
District of Columbia Board of Parole. For a prisoner whose initial 
hearing was held before August 5, 1998, the Commission shall render its 
decision by reference to the guidelines of the former D.C. Board of 
Parole in effect on August 4, 1998. However, when a decision outside 
such guidelines has been made by the Board, or is ordered by the 
Commission, the Commission may determine the appropriateness and extent 
of the departure by comparison with the guidelines of Sec.  2.80. The 
Commission may also correct any error in the calculation of the D.C. 
Board's guidelines.
    (5) Prisoners given initial hearings under the guidelines in effect 
from August 5, 1998 through December 3, 2000 (the guidelines formerly 
found in 28 CFR 2.80, Appendix to Sec.  2.80 (2000)). For a prisoner 
given an initial hearing under the Sec.  2.80 guidelines in effect from 
August 5, 1998 through December 3, 2000, the guidelines in paragraphs 
(b)-(n) of this section shall be applied retroactively subject to the 
provisions of paragraph (o) of this section.
* * * * *
    (f) Base point score. * * *
    Point Assignment Table
* * * * *
CATEGORY III: DEATH OF VICTIM OR HIGH LEVEL VIOLENCE
* * * * *
    A. Current offense involved violence (high level violence or other 
violence) with death of victim resulting +3
* * * * *
    (o) Conversion rules for retroactive application of the Sec.  2.80 
guidelines. When the guidelines of this section are retroactively 
applied, the following conversion rules shall be used.
    (1) If the prisoner previously had any points added for negative 
institutional behavior under the guidelines formerly found in the 
Appendix to Sec.  2.80 (2000) (i.e., the guidelines in effect from 
August 5, 1998 through December 3, 2000), the total guideline range 
shall be increased by the lesser of:
    (i) The guideline range from Sec.  2.36 found to apply to the prior 
misconduct; or
    (ii) The range of months obtained when the number of points 
previously added for negative institutional behavior is multiplied by 
the rehearing range applicable under the guidelines in the former 
Appendix to Sec.  2.80 (e.g., if two points previously were added for 
misconduct and the applicable rehearing range was 18-24 months, then 
36-48 months (2 x 18-24) would be added).
    (2) If negative institutional behavior previously was sanctioned by 
the application of a guideline range at Sec.  2.36, the total guideline 
range shall be increased by that range for that behavior.
    (3) If the prisoner previously had an extra point deducted for 
superior program achievement (as opposed to ordinary program 
achievement) under the guidelines in the former Appendix to Sec.  2.80, 
the total guideline range shall be decreased by the rehearing guideline 
range applicable under the Appendix to Sec.  2.80 guidelines (e.g., if 
an extra point previously was subtracted for superior (not ordinary) 
program achievement and the applicable rehearing range was 18-24 
months, then 18-24 months would be subtracted).
    (4) Misconduct or superior program achievement since the last 
hearing shall be considered in accordance with the guidelines of this 
section.

    4. Section 2.82 is amended by revising paragraph (a) to read as 
follows:


Sec.  2.82  Effective date of parole.

    (a) An effective date of parole may be granted up to nine months 
from the date of the hearing.
* * * * *

    5. Section 2.86 is amended as follows:
    a. Revise the first paragraph (c) which begins ``If a parole 
effective date is rescinded * * *,'' to read as set forth below;
    b. Redesignate paragraph (d) as paragraph (e);
    c. Redesignate the second paragraph (c) which begins ``After a 
prisoner has been granted a parole effective date,'' as paragraph (d).


Sec.  2.86  Release on parole; rescission for misconduct.

* * * * *
    (c) If a parole effective date is rescinded for disciplinary 
infractions, an appropriate sanction shall be determined by reference 
to Sec.  2.36.
* * * * *


Sec.  2.94  [Amended]

    6. Section 2.94 is amended by removing the first sentence of 
paragraph (a).

    7. Section 2.106 is amended as follows:
    a. Revise paragraph (a);
    b. Amend paragraph (b) by removing the second sentence;
    c. Amend paragraph(d) by revising the paragraph heading and by 
redesignating present paragraph (d) as paragraph (d)(1), and adding 
paragraph (d)(2).
    The revised and added text reads as follows:


Sec.  2.106  Youth Rehabilitation Act.

    (a) Regulations governing YRA offenders and D.C. Code FYCA 
offenders. The provisions of this section shall apply to an offender 
sentenced pursuant to the Youth Rehabilitation Act of 1985 (D.C. Code 
24-801 et seq.) (YRA) who committed his offense before August 5, 2000, 
and a D.C. Code offender sentenced under the former Federal Youth 
Corrections Act (former 18 U.S.C. 5005 et seq.) (FYCA). An offender 
sentenced under the YRA who committed his offense on or after August 5, 
2000 is not eligible for parole or unconditional discharge from 
supervision, but may be terminated from a term of supervised release 
before

[[Page 57947]]

the expiration of the term. See D.C. Code 24-804(c) and 24-806(c).
* * * * *
    (d)(1) Program plans and using program achievement to set the 
parole date. * * *
    (2) The youth offender's response to treatment programs and program 
achievement shall be considered with other relevant factors, such as 
the offense and parole prognosis, in determining when the youth 
offender should be conditionally released under supervision. See Sec.  
2.64(e). The guidelines at Sec.  2.80(k)-(m) on awarding superior 
program achievement and the subtraction of any award in determining the 
total guideline range shall not be used in the decision.
* * * * *


Sec.  2.207  [Amended]

    8. Section 2.207 is amended by removing the first sentence of 
paragraph (a).

    9. Section 2.208 is amended by adding a new paragraph (f) which 
reads as follows:


Sec.  2.208  Termination of a term of supervised release.

* * * * *
    (f) Decisions on the early termination of a term of supervised 
release for an offender sentenced under the YRA shall be made in 
accordance with the provisions of this section. If the Commission 
terminates the term of supervised release before the expiration of the 
term, the youth offender's conviction is automatically set aside and 
the Commission shall issue a certificate setting aside the conviction. 
See D.C. Code 24-806 (c), (d). The set-aside certificate shall be 
issued in lieu of the certificate of discharge described in Sec.  
2.209.


Sec.  2.219  [Amended]

    10. Section 2.219 is amended as follows:
    a. Amend paragraph (a)(1) by removing the phrase ``Not more than 5 
years,'' and add in its place ``Five years,'';
    b. Amend paragraph (a)(2) by removing the phrase ``Not more than 3 
years,'' and add in its place ``Three years,'';
    c. Amend paragraph (a)(3) by removing the phrase ``Not more than 2 
years,'' and add in its place ``Two years,'';
    d. Amend paragraph (a)(4) by removing the phrase ``Not more than 1 
year,'' and add in its place ``One year,''.

    Dated: September 6, 2002.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 02-23154 Filed 9-12-02; 8:45 am]
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