[Federal Register Volume 68, Number 244 (Friday, December 19, 2003)]
[Rules and Regulations]
[Pages 70709-70711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31293]


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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: Interim rule with request for comments.

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SUMMARY: This interim rule is designed to provide a fair and 
expeditious means of handling the case of an accused parole violator 
who is found to be mentally incompetent to proceed with a scheduled 
parole revocation hearing. Under the Commission's present rule, such a 
parolee is sent to the Bureau of Prisons for a mental health 
examination, with a report every six months, until the parolee regains 
sufficient competence to participate in a revocation hearing. This rule 
can result in the indefinite detention of the mentally incompetent 
parolee, without any provision for bringing the revocation matter to 
resolution. The interim rule authorizes the Commission to conduct a 
revocation hearing notwithstanding the parolee's lack of mental 
competency, so long as the Commission obtains a current mental health 
report, ensures that the parolee has counsel to present a defense, and 
takes the parolee's mental condition into account in its determination.

DATES: Effective date: January 20, 2004. Comments must be received by 
February 17, 2004.

ADDRESSES: Send comments to Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.

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: A recent case in the District of Columbia 
has illustrated the problems that can arise when the Commission finds 
that a parolee who is charged with parole violations is not mentally 
competent to participate a revocation hearing, and successive efforts 
to hold a revocation hearing are frustrated by the parolee's inability 
to regain competency. Other pending revocation cases potentially raise 
similar difficulties. Under the Commission's present regulation, 28 CFR 
2.8, such a parolee must be kept in prison with a report as to his 
mental competency submitted every six months. A revocation hearing is 
attempted only when the mental health report indicates that the parolee 
may be competent to proceed. The regulation can result in indefinite 
delays in holding the revocation hearing, because the rule lacks any 
provision for resolving the parolee's situation.
    The rule at Sec.  2.8 is grounded, in part, on the policy judgment 
that the Commission cannot responsibly return accused parole violators 
to parole supervision solely by reason of their mental incompetency. 
This result would be incompatible with a primary purpose of parole, 
i.e., to promote the reintegration of criminal offenders into society 
as law-abiding citizens through closely supervising their activities in 
the community and facilitating their rehabilitation. Effective 
supervision can only be carried out when parolees

[[Page 70710]]

maintain sufficient mental capacity to report as directed to their 
supervision officers, to follow instructions, to comply with the 
conditions of parole, and to avoid committing new crimes. Given the 
overriding public interest in preventing new crimes by released 
offenders, the Commission may justifiably require any parolee who lacks 
the mental capacity to function successfully on parole to complete his 
sentence in prison.
    The mental incompetency of a defendant facing a criminal 
prosecution has a far different consequence. A defendant who is found 
unable to regain competence to stand trial in the foreseeable future 
cannot be incarcerated indefinitely and must be released, as mandated 
by Jackson v. Indiana, 406 U.S. 715 (1972). But this requirement does 
not apply to an accused parole violator, who is a convicted felon whose 
imprisonment will terminate with the expiration date of his sentence. 
Moreover, a parolee's mental condition is not a defense to revocation, 
though the parolee's condition is a factor for the decision-maker to 
consider in the disposition of the case. E.g., United States v. Brown, 
899 F.2d 189 (2d Cir. 1990); Steinberg v. Police Court of Albany, New 
York, 610 F. 2d 449 (6th Cir. 1979). A parolee cannot, therefore, gain 
immunity from revocation of parole, and force the government to resort 
to civil commitment procedures, merely by reason of mental 
incompetency.
    On the other hand, maintaining an accused parole violator on a 
potentially indefinite six-month reporting cycle without a revocation 
hearing, as permitted by the present rule, fails to serve the interest 
of both society and the parolee in seeing that parole violation charges 
are resolved in a reasonable time. Conducting a revocation hearing 
notwithstanding the parolee's mental incompetency is the appropriate 
solution because, in the final analysis, revocation of parole is 
remedial in nature. E.g., United States v. Pinjuv, 218 F.3d 1125, 1131 
(9th Cir. 2000), citing, Standlee v. Rhay, 557 F.2d 1303, 1306 (9th 
Cir. 1977). Although it is obviously important for an accused parole 
violator to be able to participate meaningfully in the revocation 
process, the overriding consideration is that the Commission should 
avoid excessive delay in determining whether revocation is appropriate. 
A prolonged delay in holding the revocation hearing may result in the 
loss of witnesses, or the ability of witnesses to recall the events 
underlying a charged violation, which would impede the Commission's 
ability to make an accurate evaluation of the parolee's conduct and 
needs, and make an informed predictive judgment of the parolee's 
ability to live a law-abiding life. Morrissey v. Brewer, 408 U.S. 471, 
480 (1972). It can also keep the parolee in custody unjustly where the 
violation charges would otherwise be dismissed.
    If revocation is ordered, depending on the seriousness of the 
violations committed and the risk of new criminal behavior, the 
Commission can take such measures as are best suited to protect the 
public, which may include a reparole under conditions of supervision 
adequate to support the parolee's mental health needs. If the charges 
are dismissed, or revocation is otherwise not found appropriate, the 
Commission can return the parolee to the community with a better 
understanding of the needs that must be addressed to improve the 
parolee's chances for success.
    Consequently, the Commission's revised regulation requires that, 
whenever a parolee appears to be incompetent to go forward with a 
revocation hearing, the hearing examiner must temporarily postpone the 
hearing to obtain a report concerning the parolee's competency from 
mental health professionals. If the incompetency appears at the 
probable cause hearing stage, the examiner (or Commission) will make a 
finding as to probable cause and, if probable cause is found, will 
schedule a revocation hearing to be held with such a report.
    At the postponed revocation hearing, the hearing examiner will make 
a preliminary determination as to the parolee's competency before 
proceeding with the revocation hearing. But the hearing examiner will 
proceed with the revocation hearing even if the examiner determines 
that the parolee is mentally incompetent to participate in the hearing. 
Under the interim rule, a finding of incompetency is not a reason for 
ordering further postponements or for canceling the hearing. In such a 
case, the purpose of the mental competency determination is to inform 
the examiner of the parolee's condition, so that the examiner can 
ensure that both a fair revocation hearing and a reasonable decision 
results.
    In drafting this revised regulation, the Commission has taken 
account of the possibility that holding a revocation hearing in the 
case of an incompetent parolee could result in an increased risk of 
erroneous fact-finding. This risk will be controlled by the provision 
that any mentally incompetent parolee must be afforded representation 
by counsel at the revocation hearing. Counsel will be expected to 
investigate the charges by speaking to witnesses, family members, and 
others with relevant information. Counsel will be permitted to present 
any substantial defense to the charges which the circumstances suggest, 
even if the parolee is not able to testify or give counsel meaningful 
assistance. This is not an unfair expectation because counsel is not 
tasked with preparing a defense in a criminal trial under the standard 
of ``beyond a reasonable doubt.'' Counsel is only tasked with preparing 
a defense in an informal administrative hearing, under the lesser 
standard of the ``preponderance of the evidence,'' whereby counsel need 
only provide the Commission with the explanation of the facts which 
``best accords with reason and probability.'' See 28 CFR 2.19(c). As 
the Supreme Court stated in Morrissey v. Brewer, supra, 408 U.S. at 
489, a parole revocation hearing is not a criminal trial ``in any 
sense.''
    Therefore, the absence of any readily evident defenses to the 
alleged parole violations will, in most cases, result in counsel 
emphasizing factors in mitigation. Even though a case may occur in 
which a parolee cannot communicate to counsel some defense that is 
known only to the parolee, it is still preferable for the Commission to 
hold a hearing and make the best decision it can, as opposed to 
postponing the hearing until such time as the parolee is able to regain 
his competence.
    In sum, the only requirement of due process in such a case is that 
the Commission must take the parolee's mental condition fully into 
account in conducting the revocation hearing and making its decision. 
Pierce v. State Department of Social and Health Services, 646 P. 2d 
1382 (S. Ct. Wash. 1982) (en banc). Before making a finding as to 
whether the parolee violated parole as charged, the Commission will 
consider the parolee's difficulty in communicating his version of the 
facts, and weigh that factor in the balance in assessing the 
probabilities under 28 CFR 2.19(c). If the Commission finds that 
violations have occurred, the Commission will consider the parolee's 
inability to provide a coherent explanation of the reasons for his 
misconduct in determining whether revocation is the appropriate remedy.
    Because this is a rule of procedure only, and implementation of the 
rule at the earliest opportunity is necessary for the Commission to be 
able to resolve any potential delays in its revocation caseload, this 
rule will go into effect as an interim rule with request for comments, 
in contrast to proposals for rulemaking on substantive matters such as 
paroling policy.

[[Page 70711]]

Implementation

    The amended rule will take effect January 20, 2004, and will apply 
to all cases, federal and District of Columbia, including District of 
Columbia offenders on supervised release.

Executive Order 12866

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

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this rule 
does not have sufficient federalism implications requiring a Federalism 
Assessment.

Regulatory Flexibility Act

    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.

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local, or tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. No 
action under the Unfunded Mandates Reform Act of 1995 is necessary.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on the ability of United States-based companies to compete with 
foreign-based companies.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
parole.

The Interim Rule

0
Accordingly, the U.S. Parole Commission is adopting the following 
amendment 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).

0
2. Amend Sec.  2.8 by revising paragraph (c) and adding paragraph (e). 
The revised and added texts read as follows:


Sec.  2.8  Mental competency proceedings.

* * * * *
    (c) Whenever the hearing examiner(s) or designated official 
determine that a prisoner is mentally incompetent and postpone the 
previously scheduled hearing, they shall forward the record of the 
preliminary hearing with their findings to the Regional Commissioner 
for review.
    (1) In the case of a prisoner, if the Regional Commissioner concurs 
with their findings, the Commissioner shall order the temporarily 
postponed hearing to be postponed indefinitely until such time as it is 
determined that the prisoner has recovered sufficiently to understand 
the proceedings. The Regional Commissioner shall require a progress 
report on the mental health of the prisoner at least every six months. 
When the Regional Commissioner determines that the prisoner has 
recovered sufficiently, the Commissioner shall reschedule the hearing 
for the earliest feasible date.
    (2) In the case of a parolee in a revocation proceeding, the 
Regional Commissioner shall postpone the revocation hearing and order 
that the parolee be given a mental health examination in a suitable 
facility of the Bureau of Prisons or the District of Columbia. The 
postponed revocation hearing shall be held within 60 days, or as soon 
as a satisfactory mental health report is submitted. The Regional 
Commissioner shall order that appointment of counsel be sought in any 
case where the parolee does not have counsel for the revocation 
hearing. If the parolee's mental incompetency is raised at a 
preliminary interview or probable cause hearing, the Commission (or 
hearing official) will make a determination of probable cause and, if 
probable cause is found, schedule a revocation hearing as provided in 
this paragraph.
* * * * *
    (e) At a postponed revocation hearing under this section, the 
hearing examiner shall make a preliminary determination as to the 
parolee's mental competency, taking into account all available mental 
health reports, any evidence submitted on the parolee's behalf, any 
report from counsel as to counsel's ability to communicate with the 
parolee, and the parolee's own responses to the examiner's questioning.
    (1) If the hearing examiner determines the parolee to be mentally 
competent, the examiner shall conduct the revocation hearing. If 
counsel has previously asserted the parolee's incompetence, the 
examiner shall offer counsel a brief recess to consult with the parolee 
before proceeding.
    (2) If the hearing examiner determines the parolee to be mentally 
incompetent, the examiner shall conduct the revocation hearing, and 
shall take into full account the parolee's mental condition in 
determining the facts and recommending a decision as to revocation and 
reparole.
    (3) If the Commission revokes parole, the Commission may grant 
reparole conditioned on the parolee's acceptance into a particular type 
of mental health program prior to release from prison, or may grant 
reparole with a special condition of supervision that requires 
appropriate mental health treatment, including medication. In cases 
where no other option appears appropriate, the Commission may grant 
reparole conditioned upon the parolee's voluntary self-commitment to a 
mental health institution until such time as the parolee has 
sufficiently recovered for the Commission to permit the parolee's 
return to supervision.
    (4) If the Commission finds that the parolee did not commit the 
charged violations of parole, but also finds that the parolee is unable 
to fulfill the normal obligations of a parolee by reason of his mental 
condition, the Commission may reinstate the parolee to parole with any 
appropriate special condition, including the special condition, if 
necessary, that the parolee voluntarily commit himself to a mental 
institution until such time as the parolee has sufficiently recovered 
for the Commission to permit a return to supervision.

    Dated: December 12, 2003.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 03-31293 Filed 12-18-03; 8:45 am]
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