[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58540-58544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27308]


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DEPARTMENT OF JUSTICE

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: Final rule.

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SUMMARY: The Parole Commission is establishing an administrative remedy

[[Page 58541]]

that responds to a Federal district court decision which finds that, 
for some District of Columbia prisoners, the Commission's use of parole 
guidelines it promulgated in 2000 may significantly risk an increase 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 prisoner a parole effective 
date 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.

DATES: Effective Date: November 13, 2009.

FOR FURTHER INFORMATION CONTACT: Rockne Chickinell, 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: 

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)(1). The Commission took over this 
responsibility from the District of Columbia Board of Parole 
(hereinafter ``Board'') on August 5, 1998 as a result of the National 
Capital Revitalization and Self-Government Improvement Act of 1997 
(Pub. L. 105-33). In fulfilling this duty, the Commission must follow 
the parole laws and regulations of the District of Columbia. DC Code 
24-131(c). However, the Commission was granted the exclusive authority 
to amend any regulation governing the parole release function. DC Code 
24-131(a)(1). In July 1998, the Commission promulgated regulations to 
implement its new duties, including paroling policy guidelines at 28 
CFR 2.80. 63 FR 39172-83 (July 21, 1998). In developing these 
guidelines, the Commission used the basic approach and format of the 
paroling guidelines promulgated by the Board in March 1985 and 
published in May 1987, but made modifications to these guidelines to 
incorporate factors that had led the Board to depart from the 
guidelines. 63 FR 39172-74. In July 2000, the Commission amended the 
Sec.  2.80 guidelines, 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 (July 26, 2000) (hereinafter the ``2000 Commission 
guidelines''). Effective August 5, 2000, the Board was abolished. 47 DC 
Reg. 8669 (Oct. 27, 2000).
    Also in 2000, the U.S. Supreme Court decided the case of Garner v. 
Jones, 529 U.S. 244 (2000), and indicated in the opinion 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 Commission's application of the 2000 
Commission guidelines for several DC Code prisoners violated the Ex 
Post Facto Clause. Sellmon v. Reilly, 551 F.Supp.2d 66 (D. DC 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 
guidelines, instead of the 2000 Commission guidelines. The Justice 
Department ultimately decided to withdraw its appeal of the district 
court's order regarding the successful plaintiffs. Several of the 
unsuccessful plaintiffs appealed to the U.S. Court of Appeals for the 
District of Columbia Circuit and these cases are still pending. While 
the Sellmon decision only requires new hearings for the successful 
plaintiffs in that case, the Commission concluded that the cost and 
burden of future litigation compelled a reassessment of its position 
and the establishment of an administrative remedy to avoid continued ex 
post facto challenges to its parole determinations for DC prisoners.

Discussion of the Rule and Public Comment

    Effective August 17, 2009, the Commission promulgated an interim 
rule allowing some DC prisoners to receive new parole determinations 
using the 1987 Board guidelines. See 74 FR 34688-90 (July 17, 2009). 
Before and after the publication of the interim rule, the Commission 
sought and received public comment on the proposed plan, as discussed 
below. The Commission adopted the following criteria for eligibility 
under the remedial plan: (1) The DC prisoner committed the crime after 
March 3, 1985 and before August 5, 1998; (2) the prisoner received an 
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 has retained these criteria for 
eligibility in the final rule. The Commission has modified the interim 
rule to remove a requirement that an eligible prisoner apply for the 
consideration under the 1987 Board guidelines. An eligible prisoner who 
waives consideration under the 1987 Board guidelines will not be heard 
for parole under these guidelines.
    At a record review or hearing under the remedial plan, the hearing 
examiner will evaluate the prisoner for parole using the 1987 Board 
guidelines. The ``1987 Board guidelines'' include the Board's version 
of 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 (also known as the ``grid 
score''), and the reasons for departing from the guidelines listed in 
the decision worksheet at Appendix 2-1 of the Board's 1987 rules. 
Because the suggested reasons include the term ``other,'' the 
Commission may use a reason not listed in the worksheet in making 
departures from the guidelines.
    A 1991 Board policy guideline provides definitions of terms used in 
scoring post-incarceration factors of the 1987 Board 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 this policy guideline was in effect (from December 16, 
1991 to October 23, 1995), the Commission

[[Page 58542]]

will use the definitions given in the 1991 policy guideline for scoring 
negative behavior or sustained achievement, and the departure reasons 
that have been identified by the Board in its rules and the policy 
guideline. But again, the Commission may rely on ``other'' reasons for 
departing from the guidelines, reasons not listed in the rules and the 
policy statement. However, as a result of the Sellmon litigation, 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 the crime, or because the prisoner's release would depreciate the 
seriousness of the offense.
    The remedial hearing will be conducted using the 1987 Board 
guidelines for making a release decision at an initial hearing. If the 
prisoner has already had a rehearing or has already served a sufficient 
period of time to come up for a rehearing, the hearing examiner will 
then apply the Board guidelines for a rehearing decision. The 
Commission modified the interim rule to simplify a direction concerning 
application of the rehearing guidelines. If the Commission has granted 
the prisoner a presumptive parole date under the 2000 Commission 
guidelines, the Commission will not rescind the presumptive date unless 
one of the accepted bases for such action exists, i.e., new criminal 
conduct, new institutional misconduct, or new adverse information. The 
final 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 that 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 fails in the program or if one of 
the other accepted bases for rescission of a presumptive date are 
present.
    At the May 14, 2009, business meeting, the Commission received 
written and oral comments from interested organizations on a proposed 
remedial plan. The comments came from representatives of the District 
of Columbia Public Defender Service, the Washington Lawyers' Committee 
on Civil Rights and Urban Affairs (hereinafter ``Lawyers' Committee''), 
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 on March 4, 1985. In their view, 
the Commission should apply the 1987 Board guidelines to those 
offenders as well as offenders who committed their crimes when these 
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 Lawyers' Committee reiterated these concerns in its written 
comments to the Commission's promulgation of the interim rule. In its 
comments, the Lawyers' Committee asserted that the Commission should: 
(1) Establish a clear and short time line for completing the hearings 
and reviews under the new policy; (2) limit itself to the reasons for 
guideline departures specifically listed by the Board in its rules and 
policy guidelines; (3) ensure that offenders who were heard under the 
2000 Commission guidelines would continue to be considered under the 
1987 Board guidelines; and (4) extend the use of the 1987 Board 
guidelines to all D.C. Code offenders regardless of the date of the 
offense. The Lawyers' Committee provided the only substantive comments 
to the Commission's interim rule.
    With respect to the first assertion, the Commission initially set a 
goal of completing the hearings and reviews by January 31, 2010. At the 
October 6, 2009 Commission business meeting, the representative from 
the Lawyers' Committee questioned whether this deadline was realistic 
considering the resources that the Commission could devote to the 
project. The Commission estimates that approximately 550 prisoners are 
eligible for consideration under the plan. The Commission has begun 
reviewing these cases on the record and has completed over 100 record 
reviews. Beginning this month the Commission will conduct 19 special 
hearing dockets at various institutions to apply the 1987 Board 
guidelines to eligible prisoners. Based on its experience so far, 
combined with changes from the original staffing plan, the Commission 
has revised the goal for completion of the project to March 31, 2010.
    On the second assertion, the Commission has concluded that it has 
the authority to use ``other'' reasons to depart from the guidelines. 
The district judge in Sellmon took a contrary view. The Commission 
respectfully disagrees with the district court's decision on this point 
and finds support for its position in the Board's paper on the 
development of the 1987 guidelines, the Board's 1992 policy guideline 
on making decisions on rehearing dates, and case precedent from the 
U.S. Court of Appeals for the DC Circuit. The Commission's authority to 
release a prisoner on parole is dependent on satisfaction of the 
statutory criteria, i.e., that there is a reasonable probability that 
the prisoner will live and remain at liberty without violating the law, 
and that the prisoner's release is not incompatible with the welfare of 
society. The Board was not free to make release decisions in violation 
of the statutory criteria, whether by policy or by a decision in an 
individual case, and neither is the Commission. The clear majority of 
the cases reviewed by the Commission so far under the interim rule are 
prisoners who have committed crimes of extreme violence: murder, 
manslaughter, and sexual assault. The Commission expects that many of 
the remaining prisoners eligible for consideration under the plan have 
committed crimes of a similar nature, given the dates of their crimes, 
the length of their sentences, and time served to date. Some of these 
prisoners will be paroled under the 1987 Board guidelines as long as 
the Commission determines that their release would not endanger the 
public and would be compatible with the public welfare. But if, after a 
conscientious examination of the record, the Commission decides that 
the prisoner's release would pose an unreasonable risk to the public, 
the Commission will depart from the guidelines and deny parole to meet 
its statutory obligation.
    Regarding the third assertion, the Commission will apply the 1987 
Board guidelines to eligible prisoners in the special hearings and 
record reviews, and at every future parole determination proceeding 
held for such a prisoner, whichever set of guidelines were used in past 
considerations. The Commission will not revert to using the 2000 
Commission guidelines at a later parole hearing after a parole 
proceeding under the 1987 Board guidelines. Finally, on the fourth 
assertion, as the Lawyers' Committee notes in its comments, the DC 
Circuit is presently considering an appeal from a Sellmon plaintiff who 
was denied relief on the claim that the

[[Page 58543]]

Commission should have used the 1987 Board guidelines in his case even 
though he committed his crime before these guidelines were in effect. 
The Commission will await the decision of the circuit before 
considering any amendment of the rule to expand the coverage of the 
rule beyond the present limit set on the basis of the offense date. The 
1987 Board guidelines were in effect from March 4, 1985 through August 
4, 1998, and the Commission will continue to apply the remedial plan 
only to a DC prisoner who committed his crime in this period.

Implementation

    This final rule shall apply to any DC prisoner eligible under the 
terms of the rule for a hearing using the 1987 Board guidelines. The 
Commission will begin special hearing dockets to carry out the remedial 
plan in November 2009 and end the special dockets by March 31, 2010. 
The Commission will consider extending the special dockets beyond March 
2010 for demonstrated need. If eligible prisoners are scheduled for 
hearings on regular dockets during the period from November 2009 to 
March 2010, these eligible prisoners shall be considered for parole 
using the 1987 Board guidelines. If an eligible prisoner comes up for a 
hearing after the special dockets are concluded, the prisoner shall be 
considered for parole using the 1987 Board guidelines. An eligible 
prisoner who is denied parole after consideration under the 1987 Board 
guidelines shall continue to be considered for parole under these 
guidelines until released as a result of a parole or accumulation of 
good time credits.

Good Cause Finding

    The Commission finds that there is good cause to make this final 
rule effective before the expiration of 30 days from the date of 
publication. See 5 U.S.C. 553(d)(3). The plan described in this rule 
was the subject of public comment from May-September 2009, and has been 
implemented as an interim rule since August 17, 2009. There are no 
significant changes in the final rule from the interim rule. Delaying 
the effective date of the rule is not necessary to prepare correctional 
or supervision agencies for the workload caused by implementation of 
the rule. Delaying the effective date would arguably expose the 
Commission to continued litigation over the subject of the final rule.

Executive Order 12866

    The U.S. Parole Commission has determined that this final 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 final 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 Final 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 
Board guidelines'').
    (2) A prisoner must satisfy the following criteria to obtain a 
determination using the 1987 Board 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) For a prisoner eligible for application of the 1987 Board 
guidelines, a hearing examiner shall first 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, a hearing shall be 
conducted on an appropriate hearing docket.
    (4) At the hearing, the hearing examiner shall evaluate the 
prisoner's case using the 1987 Board guidelines, as if the prisoner 
were receiving an initial hearing. If appropriate, the hearing examiner 
shall evaluate the case using the 1987 Board guidelines for rehearings, 
revising the initial point score based on the prisoner's prison conduct 
record and program performance. The Commission shall 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

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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: November 6, 2009.
Isaac Fulwood,
Chairman, United States Parole Commission.
[FR Doc. E9-27308 Filed 11-12-09; 8:45 am]
BILLING CODE 4410-31-P