[Federal Register Volume 68, Number 66 (Monday, April 7, 2003)]
[Rules and Regulations]
[Pages 16718-16720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7850]


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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 its procedures 
governing the mandatory release of military prisoners confined in 
Federal civilian prisons. Such mandatory release is earned through good 
time credits. The

[[Page 16719]]

amendment implements a Department of Defense Instruction that permits 
the U.S. Parole Commission to place a military prisoner who is released 
from a Federal civilian prison under ``mandatory supervision as if on 
parole'' until the expiration of the sentence imposed, if the 
Commission determines that such supervision is necessary for the 
orderly transition of the offender back into community.

DATES: Effective Date: April 7, 2003.

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: Former Department of Defense regulations did 
not permit any military prisoner who was released by operation of law 
due to good time credits to be subject to supervision in the community 
for the remainder of the imposed sentence. This was in contrast to the 
requirement that applies to Federal civilian prisoners who are eligible 
for but denied parole. Prisoners sentenced by military courts martial 
and then transferred to a Federal institution come under the exclusive 
jurisdiction of the U.S. Parole Commission for parole purposes pursuant 
to 10 U.S.C. 858. Thus, in the absence of any rule authorizing post-
release supervision for military mandatory releasees, there was a gap 
in the Commission's authority to require post-release supervision for 
military prisoners mandatorily released on good time from institutions 
operated by the Federal Bureau of Prisons. (The Bureau of Prisons 
considered former 18 U.S.C. 4164--which authorizes mandatory release 
supervision for federal civilian prisoners eligible for parole--to be 
inapplicable to military prisoners who committed their crimes on or 
after November 1, 1987.) Thus, if the Commission denied parole and 
continued a military prisoner to the expiration of his sentence, the 
Commission was not able to supervise the offender. However, if the 
Commission paroled the military prisoner prior to the mandatory release 
date, the Commission could supervise the military offender just as any 
other parolee to the expiration of the prisoner's sentence.
    At the request of the Attorney General of the United States, the 
Department of Defense has amended its regulations regarding the 
mandatory release of military prisoners, including prisoners in the 
custody of the Bureau of Prisons. See DoD Instruction 1325.7, 
``Administration of Military Correctional Facilities and Clemency and 
Parole Authority,'' July 17, 2001. These regulations generally allow 
for the supervision of military prisoners mandatorily released with 
good time deductions.\1\ In the regulations, the Department of Defense 
adopted a policy to use mandatory supervision in all cases except where 
the Service Clemency and Parole Boards find it inappropriate. The 
regulations also permit the Parole Commission to place military 
prisoners who are in Federal civilian custody on ``mandatory 
supervision'' after they are mandatorily released, if the Commission 
finds that such supervision is appropriate ``to provide an orderly 
transition to civilian life for released prisoners and to protect the 
communities into which the prisoners are released.'' See DoD 
Instruction 1325.7 (6.20.8). However, the DoD Instruction is silent as 
to whether the Commission should, as the Department of Defense has 
done, adopt a general presumption that mandatory supervision is 
appropriate. Additionally, the new DoD instruction may be applied only 
to offenders who committed their crimes 30 days or more after the rule 
change. Therefore, under the terms of the DoD instruction, the 
Commission can only require supervision if the prisoner committed his 
crime on or after August 16, 2001.
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    \1\ Mandatory supervision for military offenders differs from 
mandatory release for ``old law'' U.S. Code offenders under 18 
U.S.C. 4164 since such supervision runs to the full term without the 
180-day reduction that applies to civilian, ``old law'' mandatory 
releasees.
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    The Commission is adopting a paragraph at the end of 28 CFR 2.35 so 
that the Commission's rules will conform to the Department of Defense 
regulations and policy regarding the mandatory release of military 
prisoners. Pursuant to the DoD Instruction, the amended rule states 
that when the Commission orders a military offender continued to 
expiration, the military prisoner will be placed on ``mandatory 
supervision'' until the expiration of his sentence if the Commission 
finds that the DoD criteria are met. The Commission is adopting this 
rule in order to give military offenders incarcerated in federal 
civilian prisons notice that, if the Commission denies the prisoner 
parole and continues the prisoner to the expiration of the prisoner's 
sentence, the prisoner may be required to serve a period of mandatory 
supervision after the prisoner's release. Although the Commission 
already has the authority under Department of Defense regulations to 
order mandatory supervision for military prisoners who committed their 
offenses on or after August 16, 2001, this rule further clarifies the 
Commission's authority and explains the Commission's general statement 
of policy regarding mandatory supervision.
    The amended rule also includes the presumption that supervision is 
appropriate for all military mandatory releasees unless case-specific 
factors indicate that supervision is not appropriate. See DoD 
Instruction 1325.7 (6.20.1). The Commission is adopting this 
presumption for several reasons. First, the presumption in favor of 
supervision conforms with the presumption in the DoD Instruction. The 
inclusion of the presumption in favor of supervision after mandatory 
release will thus result in a uniform application of the Instruction 
among military offenders released from military and civilian 
institutions. Most importantly, the Commission agrees with the 
Department of Defense's general assessment that supervision in the 
community is, for the majority of cases, a highly effective technique 
to provide for a transition into the community and to protect the 
communities into which the prisoners are released. Therefore, the rule 
states that mandatory supervision shall be presumed unless the 
Commission finds case-specific factors illustrating that such 
supervision is inappropriate.
    Finally, the final rule makes one change from the interim rule 
regarding early termination of mandatory supervision. The Commission 
has refrained from making early termination from supervision decisions 
for military offenders because it has considered this authority to be 
vested in the appropriate military clemency board. See Parole 
Commission Rules and Procedures Manual 2.43-04. Accordingly, the 
Commission is clarifying the final sentence of the rule, noting that 
the authority to terminate a military prisoners mandatory supervision 
rests with the appropriate military clemency board. The rule now makes 
it clear that a prisoner on ``mandatory supervision'' will be subject 
to the conditions of parole at 28 CFR 2.40 unless the appropriate 
military clemency board takes action terminating the prisoner's 
supervision or sentence.

Implementation

    This final rule will be implemented for any military offender 
mandatorily released on good time deductions from a Federal civilian 
prison if the offender committed his offense after August 15, 2001.

[[Page 16720]]

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this interim rule 
does not constitute a significant rule within the meaning of Executive 
Order 12866. The interim 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 Amended Rule

0
Accordingly, the U.S. Parole Commission is adopting the following 
amendments to 28 CFR part 2.

PART 2--[AMENDED]

0
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

0
2. Section 2.35 is amended by revising the following paragraph (d):


Sec.  2.35  Mandatory release in the absence of parole.

* * * * *
    (d) If the Commission orders a military prisoner who is under the 
Commission's jurisdiction for an offense committed after August 15, 
2001 continued to the expiration of his sentence (or otherwise does not 
grant parole), the Commission shall place such prisoner on mandatory 
supervision after release if the Commission determines that such 
supervision is appropriate to provide an orderly transition to civilian 
life for the prisoner and to protect the community into which such 
prisoner is released. The Commission shall presume that mandatory 
supervision is appropriate for all such prisoners unless case-specific 
factors indicate that supervision is inappropriate. A prisoner who is 
placed on mandatory supervision shall be deemed to be released as if on 
parole, and shall be subject to the conditions of release at Sec.  2.40 
until the expiration of the maximum term for which he was sentenced, 
unless the prisoner's sentence is terminated early by the appropriate 
military clemency board.

    Dated: March 21, 2003.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 03-7850 Filed 4-4-03; 8:45 am]
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