[Federal Register Volume 67, Number 228 (Tuesday, November 26, 2002)]
[Rules and Regulations]
[Pages 70692-70694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29952]


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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: Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is amending procedures governing 
parole proceedings for federal and District of Columbia offenders, and 
transfer treaty prisoners. Almost all the amendments are corrections 
and clarifications of the instructions for calculating the salient 
factor score, a component of the Commission's paroling policy 
guidelines. The Commission is also correcting a reference to the U.S. 
Sentencing Guidelines in a regulation regarding the imposition of 
release conditions for a transfer treaty prisoner released to a term of 
supervised release.

EFFECTIVE DATE: These rule amendments are effective December 30, 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: 
    The salient factor score is an actuarial device used by the 
Commission to evaluate the risk of parole violation by a prisoner if 
released to supervision. The score is a component of the Commission's 
paroling policy guidelines for making parole release decisions for U.S. 
Code offenders (28 CFR 2.20), and is also employed in the guidelines 
for DC Code offenders (28 CFR 2.80). The score comprises six criminal 
history items, including items such as number of prior convictions and 
commitments, and age at the time of current offense. The total score 
ranges from 0-10, with the higher score indicating that the prisoner is 
a better parole risk.
    The Commission is now updating the instructions in the salient 
factor scoring manual to give better guidance in the scoring of the 
individual items. Some of the changes are corrections of text that 
should have been amended in earlier revisions of the score, or 
editorial improvements to make the instructions easier to read. Other 
changes reflect the application of the score in determining terms of 
imprisonment for DC Code supervised release violators. Finally, several 
new instructions implement advice the Commission's Office of General 
Counsel has provided to Commissioners and staff in the use of DC 
juvenile consent decrees and juvenile commitments to the DC Department 
of Human Services for salient factor scoring.
    Aside from the amendments to the salient factor scoring manual, the 
Commission is also correcting a reference to the U.S. Sentencing 
Guidelines in its regulation at 28 CFR 2.68(l) on the imposition of 
conditions of supervised release for a transfer treaty prisoner who is 
released to a term of supervised release.

Implementation

    These amendments will be applied in any hearing or record review 
conducted after the effective date of the amendments.

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 A--United States Code Prisoners and Parolees

    2. Section 2.20 is amended as follows:
    a. In the table entitled ``Guidelines For Decisionmaking'' remove 
``salient factor score 1981'' and substitute ``salient factor score 
1998'';
    b. Revise the Salient Factor Scoring Manual, Item A, paragraphs 
A.1, A.5, and add paragraph A.14;
    c. Revise the Salient Factor Scoring Manual, Item B, paragraphs 
B.3(b)-(c), and add paragraph B.3(d);
    d. Revise the Salient Factor Scoring Manual, Item C, paragraphs 
C.1-C.4, redesignate paragraph C.5 as C.10, and add paragraphs C.6-C.9;
    e. Revise the Salient Factor Scoring Manual, Item E, paragraphs 
E.3(b)-(c);
    f. Revise the Salient Factor Scoring Manual, Item F;
    g. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Probation Violators, by revising the title and the paragraphs 
for scoring Items A and E, remove the paragraph for scoring Item F, and 
redesignate the paragraph for scoring Item G as Item F;
    h. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Parole Violators, by revising the title and the paragraphs for 
scoring Items A-

[[Page 70693]]

D, and F, and remove the paragraph for scoring Item G;
    i. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Confinement/Escape Status Violators With New Criminal Behavior 
In The Community, by revising the title, remove the paragraph for 
scoring Item F, and redesignate the paragraph for scoring Item G as 
Item F and revise Item F.
    The revised and added text reads as follows:


Sec.  2.20  Paroling policy guidelines: Statement of general policy.

* * * * *

Salient Factor Scoring Manual

* * * * *
    Item A. * * *
    A.1 In General.
    (a) Count all convictions/adjudications (adult or juvenile) for 
criminal offenses (other than the current offense) that were committed 
prior to the present period of confinement, except as specifically 
noted.
    (b) Convictions for prior offenses that are not separated from each 
other by an intervening arrest (e.g., two burglaries followed by an 
arrest for both offenses) are counted as a single prior conviction. 
Prior offenses that are separated by an intervening arrest are counted 
separately (e.g., three convictions for larceny and a conviction for an 
additional larceny committed after the arrest for the first three 
larcenies would be counted as two prior convictions, even if all the 
four offenses were adjudicated together).
    (c) Do not count the current federal offense or state/local 
convictions resulting from the current federal offense ((i.e., offenses 
that are considered in assessing the severity of the current offense). 
Exception: Where the first and last overt acts of the current offense 
behavior are separated by an intervening federal conviction (e.g., 
after conviction for the current federal offense, the offender commits 
another federal offense while on appeal bond), both offenses are 
counted in assessing offense severity; the earlier offense is also 
counted as a prior conviction in the salient factor score.
* * * * *
    A.5 Diversion.
    Conduct resulting in diversion from the judicial process without a 
finding of guilt (e.g., deferred prosecution, probation without plea, 
or a District of Columbia juvenile consent decree) is not to be counted 
in scoring this item. However, an instance of criminal behavior 
resulting in a judicial determination of guilt before a judicial body 
shall be counted as a conviction even if a conviction is not formally 
entered.
* * * * *
    A.14 Juvenile Consent Decree (District of Columbia). A juvenile 
consent decree in the District of Columbia is a diversionary 
disposition not requiring an admission or finding of guilt. Therefore, 
it is not to be used in scoring this item.
    Item B. * * *
    B.3 Definitions.
    * * *
    (b) This item includes confinement in adult or juvenile 
institutions, community corrections centers, and other residential 
treatment centers (e.g., halfway houses and community treatment 
centers). It does not include foster home placement. Count confinement 
in a community corrections center (CCC) or other residential treatment 
center only when it is part of a committed sentence. Do not count 
confinement in a community corrections center or other residential 
treatment center when imposed as a condition of probation or parole. Do 
not count self-commitment for drug or alcohol treatment.
    (c) If a committed sentence of more than 30 days is imposed prior 
to the current offense but the offender avoids or delays service of the 
sentence (e.g., by absconding, escaping, bail pending appeal), count as 
a prior commitment. Note: Where the subject unlawfully avoids service 
of a prior commitment by escaping or failing to appear for service of 
sentence, this commitment is also to be considered in Items D and E. 
Example: An offender is sentenced to a three-year prison term, released 
on appeal bond, and commits the current offense. Count as a previous 
commitment under Item B, but not under Items D and E. To be considered 
under Items D and E, the avoidance of sentence must have been unlawful 
(e.g., escape or failure to report for service of sentence). Example: 
An offender is sentenced to a three-year prison term, escapes, and 
commits the current offense. Count as a previous commitment under Items 
B, D, and E.
    (d) District of Columbia Juvenile Commitment to Department of Human 
Services. In the District of Columbia, juvenile offenders may be 
committed to the Department of Human Services for placement ranging 
from a foster home to a secure juvenile facility. Such a commitment is 
counted only if it can be established that the juvenile was actually 
committed for more than 30 days to a secure juvenile institution or 
residential treatment center rather than a foster home.
    Item C. * * *
    C.1 Score 3 if the subject was 26 years of age or more at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.2 Score 2 if the subject was 26 years of age or more at the 
commencement of the current offense and has four prior commitments.
    C.3 Score 1 if the subject was 26 years of age or more at the 
commencement of the current offense and has five or more prior 
commitments.
    C.4 Score 2 if the subject was 22-25 years of age at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.5 Score 1 if the subject was 22-25 years of age at the 
commencement of the current offense and has four prior commitments.
    C.6 Score 0 if the subject was 22-25 years of age at the 
commencement of the current offense and has five or more prior 
commitments.
    C.7 Score 1 if the subject was 20-21 years of age at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.8 Score 0 if the subject was 20-21 years of age at the 
commencement of the current offense and has four prior commitments.
    C.9 Score 0 if the subject was 19 years of age or less at the 
commencement of the current offense with any number of prior 
commitments.
    Item E. * * *
    E.3 Definitions. * * *
    (b) The term ``parole'' includes parole, mandatory parole, 
supervised release, conditional release, or mandatory release 
supervision (i.e., any form of supervised release).
    (c) The term ``confinement/escape status'' includes institutional 
custody, work or study release, pass or furlough, community corrections 
center or other residential treatment center confinement (when such 
confinement is counted as a commitment under Item B), or escape from 
any of the above.
    Item F. Older Offenders.
    F.1 Score 1 if the offender was 41 years of age or more at the 
commencement of the current offense and the total score from Items A-E 
is 9 or less.
    F.2 Score 0 if the offender was less than 41 years of age at the 
commencement of the current offense or if the total score from Items A-
E is 10.

Special Instructions--Probation Violator This Time

Item A Count the original conviction that led to the sentence of 
probation as a prior conviction. Do not count the probation revocation 
as a prior conviction.

[[Page 70694]]

     * * *
Item E By definition, no point is credited for this item. Exception: A 
person placed on unsupervised probation (other than for deportation) 
would not lose credit for this item.
* * * * *

Special Instructions--Parole or Supervised Release Violator This Time

Item A The conviction from which paroled or placed on supervised 
release counts as a prior conviction.
Item B The commitment from which paroled or released to supervised 
release (including a prison term ordered for a prior supervised release 
revocation), counts as a prior commitment.
Item C Use the age at commencement of the violation behavior (including 
new criminal behavior).
Item D Count backwards three years from the commencement of the 
violation behavior (including new criminal behavior).
    * * *
Item F Use the age at commencement of the violation behavior (including 
new criminal behavior).

Special Instructions--Confinement/Escape Status Violator With New 
Criminal Behavior in the Community This Time

    * * *
Item F Use the age at commencement of the confinement/escape status 
violation.
* * * * *

Subpart B--Transfer Treaty Prisoners and Parolees


Sec.  2.68  [Amended]

    3. Section 2.68 is amended at paragraph (l) by removing 
``5B1.4(a)'' and adding ``5D1.3(a) and (c)'' in its place.

    Dated: November 18, 2002.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 02-29952 Filed 11-25-02; 8:45 am]
BILLING CODE 4410-31-P