[Federal Register Volume 74, Number 136 (Friday, July 17, 2009)]
[Rules and Regulations]
[Pages 34688-34690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16969]



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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, Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Parole Commission is implementing, as an interim rule, an 
administrative remedy for those parole-eligible District of Columbia 
prisoners who contend that the Commission's use of the parole 
guidelines at 28 CFR 2.80(b) through (m) have significantly increased 
the risk of their punishment in violation of the Ex Post Facto Clause 
of the Constitution. Under the remedial plan, the Commission will 
schedule new parole hearings for those prisoners who meet the plan's 
eligibility criteria, unless the Commission grants the applicant a 
parole effective date after a pre-hearing assessment on the record. In 
conducting the new consideration, the Commission will apply the parole 
guidelines of the former District of Columbia Board of Parole that were 
promulgated in March 1985 and published in May 1987. The Commission is 
amending Sec.  2.80 by replacing paragraph (o), which describes a 
procedure no longer employed by the Commission, with the remedial plan.

DATES: Effective date is August 17, 2009. Comments must be received by 
September 15, 2009.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2009-02 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    2. Mail: Office of the General Counsel, U.S. Parole Commission, 
5550 Friendship Blvd., Chevy Chase, Maryland 20815.
    3. Fax: 301-492-5563.

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:

Public Participation and Request for Comments

    We encourage you to submit comments on the interim rule through one 
of the methods described above. If you choose to use the rulemaking 
portal on the Internet, your comments will be posted without change to 
http://www.regulations.gov and will include any personal information 
you included in your correspondence. Your comments are most helpful 
when you provide us with the reasons behind the opinions or conclusions 
you express in your correspondence.

Background

    The U.S. Parole Commission is responsible for making parole release 
decisions for District of Columbia felony offenders who are eligible 
for parole. DC Code 24-131(a). The Commission took over this 
responsibility on August 5, 1998 as a result of the National Capital 
Revitalization and Self-Government Improvement Act of 1997 (Pub. L. 
105-33). The Commission immediately promulgated regulations to 
implement its new duties, including paroling policy guidelines at 28 
CFR 2.80. 63 FR 39172-39183 (July 21, 1998). In promulgating the 
decisionmaking guidelines, the Commission used the basic approach and 
format of the 1987 guidelines of the District of Columbia Board of 
Parole, but made modifications to the Board's guidelines in an effort 
to incorporate factors that led to departures from the guidelines. 63 
FR 39172-39174. In 2000, the Commission modified the guidelines for DC 
prisoners, creating suggested ranges of months to be served based on 
the pre- and post-incarceration factors evaluated under the guidelines, 
which in turn allowed the Commission to extend presumptive parole dates 
to prisoners up to three years from the hearing date. 65 FR 45885-
45903. Also in 2000, the U.S. Supreme Court decided the case of Garner 
v. Jones, 529 U.S. 244 (2000), indicating that parole rules that allow 
for the use of discretionary judgment may come within the proscription 
of the Ex Post Facto Clause of the Constitution. For over twenty years, 
federal appellate courts had rejected claims that the Commission's use 
of discretionary guidelines for parole release decisions violated the 
constitutional ban against ex post facto laws. As a result of the 
Supreme Court's decision in Garner, the U.S. Court of Appeals for the 
District of Columbia Circuit held that parole release guidelines may 
constitute laws that are covered by the Ex Post Facto Clause. Fletcher 
v. District of Columbia, 391 F.3d 250 (DC Cir. 2004) (Fletcher II). 
Following upon the Fletcher II decision and the decision in Fletcher v. 
Reilly, 433 F.3d 867 (DC Cir. 2006) (Fletcher III), the U.S. District 
Court for the District of Columbia (Huvelle, District Judge) held that 
the Parole Commission's application of its 2000 paroling guidelines for 
several DC Code prisoners violated the Ex Post Facto Clause. Sellmon v. 
Reilly, 551 F.Supp.2d 66 (D.D.C. 2008). Several other prisoner-
plaintiffs were denied relief by the district court. The court ordered 
that the Commission conduct new parole hearings for the successful 
plaintiffs, using the 1987 Board of Parole guidelines, instead of the 
Commission's parole guidelines at 28 CFR 2.80(b) through (m). The 
Sellmon decision affects only the plaintiffs in that case. But other 
complaints brought in the District of Columbia would now likely result 
in a similar outcome, at a significant cost to the Commission. 
Therefore, the Commission is establishing an administrative remedy to 
avoid further ex post facto challenges to its parole determinations for 
DC prisoners.

Discussion of the Interim Rule and Implementation

    As the Sellmon decision showed, not every DC prisoner must be 
reconsidered under the 1987 guidelines to avoid ex post facto problems. 
The Ex Post Facto Clause only requires that an offender be punished 
according to the law in effect at the time of his offense. If the 
prisoner committed his crime before the effective date of the 1987 
guidelines (March 4, 1985), then the Commission is not required to 
apply those guidelines to his case. Similarly, the Commission is not 
required to apply the 1987 guidelines to a DC prisoner who committed 
his crime after August 4, 1998 (the last date the former Board 
exercised its parole release authority). Therefore, the Commission is 
adopting the following criteria for eligibility under the remedial 
plan: (1) The prisoner committed the crime after March 3, 1985 and 
before August 5, 1998; (2) the prisoner received his initial hearing 
after August 4, 1998 and therefore has not been considered for parole 
under the 1987 Board guidelines; (3) the prisoner is not incarcerated 
on a parole revocation; and (4) the prisoner does not have a parole 
effective date or a presumptive parole date before January 1, 2010. The 
Commission will ask the institutions to provide notice of the remedial 
plan to eligible prisoners. After the interim rule becomes effective, 
cases will be added to hearing dockets as the Commission's workload 
permits until the remedial proceedings are completed.

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    At the hearing under the remedial plan the hearing examiner will 
evaluate the prisoner for parole using the Board's 1987 guidelines. The 
Commission has employed these guidelines for some DC prisoners since 
1992, and continues to use the 1987 guidelines for a DC prisoner who 
had his initial hearing before August 5, 1998. 28 CFR 2.80(a)(4). The 
``1987 guidelines'' include the salient factor score, the calculation 
of points for pre- and post-incarceration factors, the point assignment 
grid, the decisions indicated by the prisoner's point score, and the 
reasons for departing from the guidelines listed in the decision 
worksheet at Appendix 2-1 of the former Board's rules. Because the 
suggested reasons include the term ``other,'' the Commission is not 
restricted to the listed reasons in making departures from the 
guidelines.
    A 1991 policy guideline of the DC Board provides definitions of 
terms used in scoring post-incarceration factors of the 1987 guidelines 
(``negative institutional behavior'' and ``sustained program or work 
assignment achievement''), and in giving reasons for departing from the 
outcome indicated by the guidelines point score (e.g., ``unusually 
extensive or serious prior record''). For prisoners who committed their 
crimes while the policy guideline was in effect (from December 16, 1991 
to October 23, 1995), the Commission will follow the definitions given 
in the 1991 policy guideline for scoring negative behavior or sustained 
achievement, and in using the departure reasons that have been 
identified by the Board in its rules and the policy guideline. But 
again, the Commission is not restricted from relying on ``other'' 
reasons for departing from the guidelines, reasons not listed in the 
rules and the policy statement, with one caveat. The Commission will 
not depart from the guidelines for the reason that the prisoner has not 
served a sufficient prison term to be ``accountable'' for his crime or 
because his release would depreciate the seriousness of his offense. 
Under the former Board's policy the factor of offense accountability or 
punishment for the crime is satisfied by the prisoner's service of the 
minimum term imposed by the sentencing judge.
    The 1991 policy guideline sets standards for guideline departure 
that arguably raise doubts as to whether the standards, in some cases, 
sufficiently protect the public safety. For example, the Board defined 
the aggravating factor of ``unusually extensive or serious prior 
record'' as ``at least five (5) felony convictions for commission, or 
attempted commission, of * * * [arson, assault, murder, kidnapping, 
etc.].'' The aggravating factor of ``history of repetitive 
sophisticated criminal behavior'' is defined as ``three (3) or more 
convictions, including the current conviction, for: a. Serious crimes 
involving premeditation or methodical planning; or b. Assaultive or 
fraudulent criminal behavior.'' These definitions would seem to 
preclude a departure from the guidelines for the prisoner who has 
committed murder while on parole for murder, or who is in custody for a 
new rape conviction with a prior conviction for forcible sodomy or 
rape. These are the types of cases the Commission will have to 
carefully consider when deciding whether ``other'' reasons exist for a 
guidelines departure. The Board itself appears to have recognized the 
problems created by its 1991 policy guideline because it wrote a 
revised statement in 1995 that superseded the 1991 policy guideline and 
removed specific standards, such as the number of convictions and types 
of crimes, in describing the terms for departure.
    The remedial hearing will be conducted using the initial hearing 
guidelines of the former DC Board. If the hearing examiner does not 
recommend parole, the examiner will recommend a rehearing date 12 
months from the initial hearing date under the former Board's rule on 
the timing for rehearings, unless the examiner finds a good reason to 
depart from the normal rehearing schedule. If the examiner's 
recommended rehearing date has already passed, the examiner will then 
apply the 1987 guidelines for rehearing decisions and make a 
recommendation on the premise that the case is a rehearing case.
    If a prisoner has been granted a presumptive parole date under the 
Commission's guidelines at Sec.  2.80(b)-(m), the presumptive date will 
not be rescinded unless the Commission would rescind the date for one 
of the accepted bases for such action, i.e., new criminal conduct, new 
institutional misconduct, or new adverse information. The interim rule 
also provides that the Commission may set a presumptive parole date for 
a prisoner who is considered under the remedial plan if the Commission 
determines that the prisoner needs to successfully complete a treatment 
program to reduce the risk his release would pose to the community, and 
the prisoner's eligibility for entry into the program includes an 
expected release date within a certain number of months or years. In 
these cases, the Commission may grant the presumptive parole date on 
the condition that the prisoner successfully completes the particular 
treatment program. The Commission may rescind the presumptive date if 
the prisoner failed in the program or one of the other accepted bases 
for rescission of a presumptive date were present.
    At the quarterly business meeting held on May 14, 2009, the 
Commission received written and oral comments from interested 
organizations on a proposed remedial plan to use the 1987 guidelines 
for some DC prisoners. The comments came from representatives of the 
District of Columbia Public Defender Service, the Washington Lawyers' 
Committee on Civil Rights and Urban Affairs, the attorney who 
represented the plaintiffs in the Sellmon case, and the U.S. Attorney's 
Office for the District of Columbia. Several commenters questioned the 
plan's eligibility criteria, especially the limitation regarding 
offenders who committed their crimes before the Board's guidelines 
became effective in March 1985. In their view, the Commission should 
apply the 1987 guidelines to those offenders as well as offenders who 
committed their crimes when the guidelines were in effect. Concerns 
were also expressed regarding the proposal's allowance that the 
Commission be able to depart from the Board's guidelines for reasons 
``other'' than those listed in the Board's regulations and policy 
guidelines. The issues raised by the commenters are substantial and 
worthy of careful consideration before the Commission adopts a final 
rule implementing a remedial plan.
    The Commission will amend Sec.  2.80 by replacing paragraph (o), 
which describes conversion procedures no longer used by the Commission, 
with the interim remedial plan. The Commission is proceeding 
expeditiously with an interim rule because key personnel who are 
presently available to implement the plan will be lost through 
retirement by the end of the calendar year.

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.

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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 (Subtitle 
E--Congressional Review Act)

    This rule is not a ``major rule'' as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle 
E--Congressional Review Act), now codified at 5 U.S.C. 804(2). The 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. Moreover, this is a rule of agency practice or 
procedure that does not substantially affect the rights or obligations 
of non-agency parties, and does not come within the meaning of the term 
``rule'' as used in Section 804(3)(C), now codified at 5 U.S.C. 
804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does 
not apply.

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.  2.80 by revising paragraph (o) to read as follows:


Sec.  2.80  Guidelines for DC Code Offenders.

    * * *
    (o)(1) A prisoner who is eligible under the criteria of paragraph 
(o)(2) may receive a parole determination using the 1987 guidelines of 
the former District of Columbia Board of Parole (hereinafter ``the 1987 
guidelines'').
    (2) A prisoner must satisfy the following criteria to obtain a 
determination using the 1987 guidelines:
    (i) The prisoner committed the offense of conviction after March 3, 
1985 and before August 5, 1998;
    (ii) The prisoner is not incarcerated as a parole violator;
    (iii) The prisoner received his initial hearing after August 4, 
1998; and
    (iv) The prisoner does not have a parole effective date, or a 
presumptive parole date before January 1, 2010.
    (3) If an eligible prisoner applies for a hearing under the 1987 
guidelines, a hearing examiner shall review the case on the record. If 
the hearing examiner recommends that the prisoner receive a parole 
effective date and the Commission concurs in the recommendation, the 
case shall not be scheduled for a hearing. If the hearing examiner does 
not recommend a parole effective date, the examiner shall recommend a 
hearing on an appropriate hearing docket.
    (4) At the hearing, the hearing examiner shall evaluate the 
prisoner's case using the 1987 guidelines as if the prisoner were 
receiving an initial hearing shortly before the date of parole 
eligibility. If the prisoner has passed the rehearing date that the 
examiner determines is appropriate under the circumstances presented by 
the case, the examiner shall also evaluate the case under the rehearing 
guidelines. The Commission shall also use the former Board's policy 
guidelines in making its determinations under this paragraph, according 
to the policy guideline in effect at the time of the prisoner's 
offense.
    (5) If the Commission denies parole after the hearing, and the 
prisoner received a presumptive parole date under the parole 
determination that preceded the hearing under this paragraph, the 
prisoner shall not forfeit the presumptive parole date unless the 
presumptive date is rescinded for institutional misconduct, new 
criminal conduct, or for new adverse information.
    (6) Decisions resulting from hearings under this paragraph may not 
be appealed to the Commission.

    Dated: July 8, 2009.
Isaac Fulwood,
Chairman, United States Parole Commission.
[FR Doc. E9-16969 Filed 7-16-09; 8:45 am]
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