[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3389-3392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1593]



[[Page 3389]]

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

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 its rules which govern 
the hearing process for District of Columbia parolees and supervised 
releasees who are arrested on warrants charging them with violations 
which may result in revocation and return to prison. The amended rules 
implement a consent decree issued by the U.S. District Court for the 
District of Columbia, in Long v. Gaines, Civil Action No. 01-0010 
(EGS), dated December 17, 2002. This consent decree obliges the 
Commission to adopt as final rules the interim rules which the 
Commission published on January 18, 2002, and requires certain 
additional provisions relating to District of Columbia parolees who are 
arrested in jurisdictions outside the District of Columbia. The 
Commission has decided, in addition, to adopt the same procedures for 
District of Columbia supervised releasees. These procedures are 
intended to give the Commission a swift and efficient revocation 
hearing process which will minimize the Commission's use of the jail 
housing resources of the District of Columbia Department of 
Corrections, without impeding the Commission's ability to make a 
thorough assessment of the charges in each case.

DATES: This final rule will take effect February 24, 2003.

FOR FURTHER INFORMATION CONTACT: Michael A. Stover, Office of General 
Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, 
Maryland 20815, telephone (301) 492-5959. Please note that questions 
about this Federal Register publication are welcome, but inquiries 
concerning individual cases cannot be answered.

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 were unconstitutional with 
respect to the time deadlines for making determinations of probable 
cause and completing the revocation process. On December 17, 2002, the 
Court vacated its orders and judgment in Long v. Gaines, and entered a 
consent decree by which the Commission has agreed to withdraw its 
appeal to the U.S. Court of Appeals for the District of Columbia 
Circuit, and to adopt as final rules the rules which it adopted to 
carry out the compliance plan which the district court approved on 
November 21, 2001. The consent decree also includes certain additional 
provisions regarding DC Code parolees who are arrested in jurisdictions 
outside the District of Columbia.
    Although the revocation hearing process adopted by these amended 
rules imposes deadlines for making probable cause and final revocation 
decisions which are shorter than the Commission believes to be required 
by the Constitution, the Commission believes that this approach makes 
sense in the context of a municipal correctional system with seriously 
strained jail housing resources. The shorter the average stay of each 
arrested parolee prior to a final disposition of the revocation 
charges, the faster the parolee can either be released or transferred 
to a Bureau of Prisons facility, thus limiting the total parolee 
population in the custody of the DC Department of Corrections at any 
given time. The most important feature of the revocation system which 
the Commission has developed as a result of Long v. Gaines is the rule 
which requires the scheduling of a fixed date for the revocation 
hearing as soon as probable cause is found, and which prohibits 
postponement requests submitted to the Commission less than fifteen 
days before a scheduled hearing except for compelling reasons. By 
reducing the possibilities for tactical delays which in the past made 
the Commission's revocation caseload in the District of Columbia nearly 
unmanageable, this rule permits the Commission to process a very 
substantial caseload in an orderly manner. An efficient revocation 
process also maximizes the Commission's ability to revoke the paroles 
of high-risk parole violators and expeditiously remove them from the 
community.
    Under these amended rules, an examiner of the Commission will make 
a determination of probable cause no later than five days from arrest, 
and will hold a revocation hearing not later than 65 days from arrest. 
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. The Commission will 
issue a final decision no later than 21 days from the revocation 
hearing (i.e., 86 days from arrest). However, in the case of a parolee 
who admits all charges, waives the right to a local revocation hearing, 
or is convicted of a new crime, the Commission will conduct an 
``institutional revocation hearing'' as provided in its original rules. 
The amended rules also require the Commission to ensure that: (1) Each 
parolee is given notice of the time and purpose of the probable cause 
hearing and the charged violations; (2) each parolee is provided, prior 
to the revocation hearing, 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) each parolee's arguments and 
evidence are given to the Commission before it renders a final 
decision.
    With respect to parolees arrested outside the District of Columbia, 
but within the Washington DC Metropolitan Area, and who have not 
sustained new criminal convictions, the rules provide that an examiner 
of the Commission will conduct a probable cause hearing within five 
days of the parolee's arrival at a facility where probable cause 
hearings are conducted. Normally, the probable cause hearing will be 
conducted at the DC Jail following the transfer of the parolee from the 
local jail facility (in Maryland or Virginia) to which the parolee was 
taken immediately following arrest. The U.S. Marshals Service has 
issued instructions to all of its U.S. Marshals regarding timely 
notifications and transfers of parolees for probable cause hearings, 
which should make it possible for this new procedure to be successful.
    Finally, the Commission has decided to extend the revocation 
procedures set forth in these rules to District of Columbia supervised 
release cases, even though District of Columbia supervised releasees 
are not members of the Long v. Gaines class and are not covered by the 
consent decree of December 17, 2002. (Sentences imposed for D.C. Code 
crimes committed within the District of Columbia since August 5, 2000, 
no longer include parole, but instead carry terms of supervised release 
which come under the Commission's jurisdiction.) In the Commission's 
judgment, these rules provide the most efficient revocation system for 
both parolees and supervised releasees in the District of Columbia, and 
correspondingly the best means of protecting the public safety.

Implementation

    The Commission's regulations at 28 CFR 2.98 through 2.105, and 28 
CFR 2.211 through 2.218, as amended by this

[[Page 3390]]

publication, will be followed by the Commission in the case of all 
District of Columbia Code parolees and supervised releasees who are 
arrested and held in the Washington, DC metropolitan area on warrants 
charging a violation or violations of parole or supervised release. In 
the case of District of Columbia Code parolees and supervised releasees 
who are arrested and held outside the Washington, DC metropolitan area 
on warrants charging a violation or violations of parole or supervised 
release, the revocation rules applicable to U.S. Code parolees shall 
apply. Where preliminary interviews are required, the Commission will 
request the local U.S. Probation Office to conduct a preliminary 
interview as required by 28 CFR Sec.  2.48 (a) within 3 to 5 days of 
the Commission being notified by the U.S. Marshals Service of the 
parolee's arrest, unless exceptional circumstances require additional 
time not to exceed 10 days.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that these final rule 
amendments 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.

Adoption of Amended Rules

    Accordingly, the interim rule amendments to 28 CFR Part 2, 
Subchapter C, Sections 2.98 through 2.105, which were published at 67 
FR 2569 on January 18, 2002, are adopted by the Commission as final 
rules with revisions to Section 2.101 as set forth below. In addition, 
the Commission adopts amendments to 28 CFR Part 2, Subchapter D, which 
are also set forth below.

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. Revise Sec. 2.101 (a) and (b), 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, and who has 
not been convicted of a new crime, shall be given a probable cause 
hearing by an examiner of the Commission no later than five days from 
the date of such retaking. A parolee who is retaken and held in custody 
outside the District of Columbia, but within the Washington DC 
metropolitan area, and who has not been convicted of a new crime, shall 
be given a probable cause hearing by an examiner of the Commission 
within five days of the parolee's arrival at a facility where probable 
cause hearings are conducted. The purpose of a 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. If the examiner 
finds probable cause, the examiner shall schedule a final revocation 
hearing to be held within 65 days of such parolee's arrest.
    (b) Notice and opportunity to postpone hearing. Prior to the 
commencement of each docket of probable cause hearings in the District 
of Columbia, 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 D.C. 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 the probable cause 
hearing, the examiner shall advise the parolee that the parolee may 
accept representation by the attorney from the D.C. 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.
* * * * *

    3. Section 2.211 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.  2.211  Summons to appear or warrant for retaking releasee.

* * * * *
    (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 releasee;
    (2) The specific reports and other documents upon which the 
Commission intends to rely in determining whether a violation of 
supervised release has occurred and whether to revoke supervised 
release;
    (3) Notice of the Commission's intent, if the releasee is arrested 
within the District of Columbia, to hold a probable cause hearing 
within five days of the releasee'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 releasee's procedural rights in the revocation process; and
    (7) The possible actions that the Commission may take.

    4. Section 2.212 is amended to read 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.  2.212  Execution of warrant and service of summons.

* * * * *
    (b) Upon the arrest of the releasee, the officer executing the 
warrant shall deliver to the releasee a copy of the warrant application 
(or other notice provided by the Commission) containing the information 
described in Sec.  2.211(f).
* * * * *

    5. Section 2.214 is revised to read as follows:


Sec.  2.214  Probable cause hearing and determination.

    (a) Hearing. A supervised releasee who is retaken and held in 
custody in the District of Columbia on a warrant

[[Page 3391]]

issued by the Commission, and who has not been convicted of a new 
crime, shall be given a probable cause hearing by an examiner of the 
Commission no later than five days from the date of such retaking. A 
releasee who is retaken and held in custody outside the District of 
Columbia, but within the Washington D.C. metropolitan area, and who has 
not been convicted of a new crime, shall be given a probable cause 
hearing by an examiner of the Commission within five days of the 
releasee's arrival at a facility where probable cause hearings are 
conducted. The purpose of a probable cause hearing is to determine 
whether there is probable cause to believe that the releasee has 
violated the conditions of supervised release as charged, and if so, 
whether a local or institutional revocation hearing should be 
conducted. If the examiner finds probable cause, the examiner shall 
schedule a final revocation hearing to be held within 65 days of the 
releasee's arrest.
    (b) Notice and opportunity to postpone hearing. Prior to the 
commencement of each docket of probable cause hearings in the District 
of Columbia, a list of the releasees who are scheduled for probable 
cause hearings, together with a copy of the warrant application for 
each releasee, shall be sent to the D.C. Public Defender Service. At or 
before the probable cause hearing, the releasee (or the releasee'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 the probable cause 
hearing, the examiner shall advise the releasee that the releasee may 
accept representation by the attorney from the D.C. 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 releasee 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 
releasee meets the requirements of Sec.  2.215(a) for a local 
revocation hearing. The releasee 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.  
2.212(b) has been given to the releasee. The examiner shall then review 
the violation charges with the releasee and shall apprise the releasee 
of the evidence that has been submitted in support of the charges. The 
examiner shall ascertain whether the releasee admits or denies each 
charge listed on the warrant application (or other notice of charges), 
and shall offer the releasee 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 releasee. At a 
postponed probable cause hearing, the examiner shall also permit the 
releasee 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 (or counsel in the case of a probable cause 
hearing conducted outside the District of Columbia), 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 releasee has violated the conditions of 
release as charged, and shall so inform the releasee. 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 releasee be 
released from the custody of the warrant and either reinstated to 
supervision, or discharged from supervision if the term of supervised 
release has expired.
    (2) If the hearing examiner determines that probable cause exists 
on any violation charge, and the releasee has requested (and is 
eligible for) a local revocation hearing in the District of Columbia as 
provided by Sec.  2.215 (a), the examiner shall schedule a local 
revocation hearing for a date that is within 65 days of the releasee's 
arrest. After the probable cause hearing, the releasee (or the 
releasee'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 releasee (or the 
releasee'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 releasee is not 
eligible for a local revocation hearing as provided by Sec.  2.215 (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 releasee to an appropriate institution, and an institutional 
revocation hearing shall be scheduled for a date that is within ninety 
days of the releasee'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 releasee, 
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 releasee'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 releasee 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 the commencement of a term of supervised release 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 supervised release.
    (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 releasee's arrest and the releasee 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

[[Page 3392]]

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 releasee and possibly result in 
the appearance of witness(es) at the revocation hearing;
    (2) Notify the releasee 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.

    6. Section 2.215 (f) is revised to read as follows:


Sec.  2.215  Place of revocation hearing.

* * * * *
    (f) A local revocation hearing shall be held not later than sixty-
five days from the retaking of the releasee on a supervised release 
violation warrant. An institutional revocation hearing shall be held 
within ninety days of the retaking of the releasee on a supervised 
release violation warrant. If the releasee 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.
* * * * *

    7. Section 2.216 is amended by revising paragraph (e) and adding 
paragraphs (g) and (h) to read as follows:


Sec.  2.216  Revocation hearing procedure.

* * * * *
    (e) 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 releasee's adjustment to supervision 
and requesting the warrant, all other documents describing the charged 
violation or violations, 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 supervised 
release. If the releasee is represented by an attorney, the attorney 
shall be provided, prior to the revocation hearing, with a copy of the 
releasee'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 
releasee prior to the revocation hearing.
* * * * *
    (g) At a local revocation hearing, the Commission shall secure the 
presence of the releasee's Community Supervision Officer, or a 
substitute Community Supervision Officer who shall bring the releasee's 
supervision file if the releasee's Community Supervision Officer is not 
available. At the request of the hearing examiner, such officer shall 
provide testimony at the hearing concerning the releasee's adjustment 
to supervision.
    (h) After the revocation hearing, the hearing examiner shall 
prepare a summary of the hearing that includes a description of the 
evidence against the releasee and the evidence submitted by the 
releasee in defense or mitigation of the charges, a summary of the 
arguments against revocation presented by the releasee, and the 
examiner's recommended decision. The hearing examiner's summary, 
together with the releasee's file (including any documentary evidence 
and letters submitted on behalf of the releasee), shall be given to 
another examiner for review. When two hearing examiners concur in a 
recommended disposition, that recommendation, together with the 
releasee's file and the hearing examiner's summary of the hearing, 
shall be submitted to the Commission for decision.

    8. Section 2.217 (a) (1) is amended by removing ``preliminary 
interview'' and adding in its place ``probable cause hearing''.
    9. Section 2.218 (g) is revised to read as follows:


Sec.  2.218  Revocation decisions.

* * * * *
    (g) 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 releasee 
on a supervised release 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 16, 2003.
Edward F. Reilly, Jr.
Chairman, U.S. Parole Commission.
[FR Doc. 03-1593 Filed 1-23-03; 8:45 am]
BILLING CODE 4410-31-P