[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Rules and Regulations]
[Pages 53116-53118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17762]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

SUMMARY: The Parole Commission is studying the feasibility of 
conducting probable cause hearings through videoconferences between an 
examiner at the Commission's office and alleged parole and supervised 
release violators in custody at the District of Columbia Central 
Detention Facility. Therefore, Commission is amending the interim rule 
allowing hearings by videoconference to include probable cause hearings 
and to authorize the use of videoconferencing for a sufficient number 
of such hearings to determine the utility of the procedure.

DATES: Effective date: October 18, 2007. Comments must be received by 
November 19, 2007.

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: Since early 2004, the Parole Commission has 
been conducting some parole proceedings by videoconference to reduce 
travel costs and to conserve the time and effort of its hearing 
examiners. The Commission initiated a pilot project in which examiners 
conducted some parole release hearings by videoconference between the 
Commission's office in Maryland and the prisoner's federal institution. 
The Commission published an interim rule that provided notice that the 
Commission would be using the videoconference procedure. 69 FR 5273 
(Feb. 4, 2004).
    Based on the success of that project, the Commission extended the 
use of videoconferencing to institutional revocation hearings by an 
interim rule promulgated in April 2005. 70 FR 19262 (Apr. 13, 2005). 
The Commission holds the revocation hearing at a federal institution 
when the releasee has admitted the charged violation, waives a local 
hearing, or has been convicted of a crime that establishes a release 
violation. The great majority of institutional revocation hearings are 
still held with the hearing examiner and the releasee together at the 
federal institution. The Commission's experience with the 
videoconference procedure in institutional revocation hearings is 
consistent with the satisfactory experience it has had with 
videoconferencing in parole release hearings. Releasees, their 
attorneys, and witnesses have been able to effectively participate in 
the videoconference hearings with the hearing examiner.
    Now the Commission has decided to explore the utility of the 
videoconference procedure for probable cause hearings held at the 
District of Columbia Central Detention Facility for parolees and 
supervised releasees arrested for violations of the conditions of 
release. Following arrest on a violator warrant and subsequent 
detention at the DC jail, a releasee is given a hearing with an 
examiner of the Parole Commission within five days of arrest for the 
purpose of determining whether probable cause exists for the alleged 
violation of release. At this hearing, the hearing examiner's primary 
task is to determine whether any submissions from the releasee and 
counsel require a different decision as to the evidentiary support for 
the issuance of a warrant and the continued custody of the releasee. 
The releasee is usually represented by an attorney from the DC Public 
Defender Service. Given the limited purpose of the proceeding and the 
five-day time frame in which the hearing must be held, witnesses are 
normally not present at a probable cause hearing. The hearing examiner 
has the delegated authority to make a determination as to the existence 
of probable cause. At the end of the hearing, if the hearing examiner 
makes a finding of probable cause, the releasee is normally held in 
custody for a local revocation hearing. If probable cause is not found, 
the releasee is discharged from custody and revocation proceedings are 
terminated. At the local revocation hearing a Commission hearing 
examiner accepts written and oral submissions from the releasee and 
counsel, takes testimony from witnesses, and recommends credibility 
determinations that lead to a final examination of the evidence 
regarding the alleged violation. All local revocation hearings are held 
with the

[[Page 53117]]

hearing examiner in the same room with the releasee, counsel, and any 
witnesses. With the written report of the hearing by the hearing 
examiner and the examiner's recommended disposition, the Commission 
decides if the releasee committed the charged violation, and, if so, 
whether the Commission should revoke the release.
    The Commission held approximately 1700 probable cause hearings in 
2006 and sees several benefits in using videoconferencing for these 
preliminary proceedings. Videoconferencing may allow the hearing 
examiner to make the best use of the examiner's time and effort during 
the hearing docket. The progress of a probable cause hearing docket is 
frequently delayed as releasees are brought in for the hearings by 
corrections personnel, attorneys and clients meet to discuss some issue 
regarding the proceedings, or some procedural problem is corrected. If 
the examiner's attention is not needed during the delay, the examiner 
may use that time to read the releasee's file that is before the 
examiner at the Commission's office. (Given the number of probable 
cause hearings on each docket, it is impractical for an examiner to 
bring releasee files to the jail for review and use during the hearing 
docket. The examiner has only a packet of documents concerning the 
alleged violation.) With the full file readily available, the examiner 
is in a position to quickly resolve problems such as replacement of a 
document missing from the releasee's disclosure packet. Moreover, the 
hearing examiner could promptly respond to questions from the releasee 
and counsel that may assist them in making a decision whether to 
initiate a request to the Commission for a disposition of the case 
without a hearing. These questions may pertain to the calculation of 
the releasee's salient factor score, the estimate of the releasee's 
guideline range, or the maximum time remaining on the sentence. 
Consequently, probable cause hearings by videoconference may offer the 
possibility of more expeditious decisions regarding the disposition of 
the charged violation.
    The DC Public Defender Service, the Criminal Justice Clinic of the 
Georgetown University Law Center, and other advocacy programs have 
already raised concerns that using videoconferencing for probable cause 
hearings will inhibit the hearing examiner's ability to gauge the 
credibility of the releasee and witnesses, and will unjustifiably deny 
the releasee the opportunity to have a face-to-face meeting with a 
representative of the Commission before release is revoked. Underlying 
these concerns is the belief that a revocation proceeding should be 
guided by procedures appropriate to a criminal prosecution. The 
Commission does not agree with this proposition. Due process does apply 
to revocation proceedings, but not to the extent that the proceedings 
are the equivalent of criminal trials. Moreover, the probable cause 
hearing is only a preliminary proceeding in the revocation process. The 
full examination of the credibility of the releasee's statements and 
witnesses' testimony as to the alleged violation takes place at the 
local revocation hearing, which is held with the hearing examiner face-
to-face with the releasee and counsel, and the witnesses.
    Videoconferencing has been found to be legally sufficient for a 
variety of judicial and administrative proceedings. Pappas v. Kentucky 
Parole Board, 156 S.W.3d 303 (Ky.Ct.App. 2005) (parole release 
hearing); Wilkins v. Wilkinson, 809 N.E.2d 1206 (Ohio Ct. App. 2004) 
(parole revocation hearing); United States v. Baker, 45 F.3d 837 (4th 
Cir. 1995) (involuntary commitment hearing for a mentally ill 
prisoner). Furthermore, research studies regarding the use of 
videoconferencing in forensic interviews show that psychiatric 
evaluations done with videoconferencing are just as reliable as those 
done with the evaluator and the subject in a face-to-face meeting. See 
Lexcen, et al., Use of Video Conferencing for Psychiatric and Forensic 
Evaluations, Psychiatric Services, vol. 57, 713-15 (May 2006). Another 
study concludes that persons observing witnesses' statements face-to-
face with the witnesses, though these ``live'' observers were likely to 
perceive the witnesses' appearance more favorably than persons 
observing the statements through video, were no better at determining 
the truth of the witnesses' statements than the video observers. 
Landstrom, et al., ``Witnesses Appearing Live Versus on Video: Effects 
on Observers' Perception, Veracity Assessments and Memory,'' Applied 
Cognitive Psychology, vol. 19, 913-33 (2005).
    The Commission is sensitive to the concern that use of the 
videoconference procedure may depersonalize the revocation process and 
might result in the imprisonment of a revoked releasee for a number of 
months without ever meeting a Commission examiner face-to-face. 
However, this latter situation would ordinarily occur at the election 
of a releasee who agrees to waive a revocation hearing, either 
accepting a sanction offered by the Commission, or offering to accept a 
designated sanction. If a releasee decides that he wants a face-to-face 
meeting with a Commission hearing examiner, the releasee can have such 
a meeting by declining the sanction offered by the Commission or by not 
offering to accept a designated sanction. The choice rests with the 
releasee and counsel, who must weigh the benefits of an early 
disposition of the alleged violation against the loss of a face-to-face 
meeting with a hearing examiner. The Commission's experience over the 
last three years has been that the quality of interpersonal exchange 
among the hearing participants does not appreciably decline with the 
use of videoconferencing.
    Finally, even before the Commission began its pilot project with 
videoconference hearings in 2004, 22 state parole boards reported using 
this procedure for parole release hearings and 17 state boards reported 
using this procedure for parole revocation hearings. See http://www.apaintl.org/Pub-ParoleBoardSurvey2003.html. Since 1996, Congress 
has authorized federal courts to conduct supervised release revocation 
hearings by videoconference when the releasee is incarcerated and in 
default on a payment of a fine or restitution. See 18 U.S.C. 3613A. The 
Commission is hardly breaking new ground in exploring the benefits of 
videoconferencing for its proceedings.
    The Commission is promulgating this rule as an interim rule in 
order to determine the utility of the videoconference procedure for 
probable cause hearings and is providing a 60-day period for the public 
to comment on the use of the procedure for such hearings.

Implementation

    The amended rule will take effect October 18, 2007, and will apply 
to probable cause hearings for District of Columbia parolees and 
supervised releasees held on or after the effective date.

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

[[Page 53118]]

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. Revise Sec.  2.25 to read as follows:


Sec.  2.25  Hearings by videoconference.

    The Commission may conduct a parole determination hearing 
(including a rescission hearing), a probable cause hearing, and an 
institutional revocation hearing, by a videoconference between the 
hearing examiner and the prisoner or releasee.

    Dated: August 7, 2007.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
 [FR Doc. E7-17762 Filed 9-17-07; 8:45 am]
BILLING CODE 4410-31-P