[Federal Register Volume 75, Number 195 (Friday, October 8, 2010)]
[Proposed Rules]
[Pages 62342-62345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24648]
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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, Justice.
ACTION: Proposed rule.
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SUMMARY: The United States Parole Commission seeks public comment on a
proposed rule that would amend the Offense Behavior Severity Index in
its paroling policy guidelines to equalize the ratings for crack
cocaine and powder cocaine offenses.
DATES: Comments must be received by December 1, 2010.
ADDRESSES: Submit your comments, identified by docket identification
number USPC-2010-03 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Office of the General Counsel, U.S. Parole
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.
Fax: (301) 492-5563.
FOR FURTHER INFORMATION CONTACT: Johanna E. Markind, Office of the
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 those federal prisoners who are eligible for parole under
the now-repealed indeterminate sentencing system. Under this system, a
prisoner may be released to community supervision after he serves a
minimum term required by his sentence or by operation of law. After the
Commission makes a discretionary judgment to release the prisoner and
imposes conditions of release, the released prisoner remains on
supervision until the expiration of his sentence or his supervision is
terminated early. Parole may be revoked and the offender returned to
imprisonment for violating the conditions of release. The Commission
carries out its duties under the statutes at 18 U.S.C. 4201-4218. The
Commission also has similar
[[Page 62343]]
responsibility for making parole release and revocation decisions for
District of Columbia parole-eligible prisoners, under the National
Capital Revitalization and Self-Government Improvement Act of 1997,
Public Law 105-33. Regarding DC prisoners who committed their crimes
after August 4, 2000, the Commission has responsibility for imposing
conditions of supervised release and revoking supervised release terms
for violation of the conditions.
The Parole Commission uses paroling policy guidelines in making
decisions on parole release for parole-eligible federal prisoners, and
federal and DC parolees whose paroles have been revoked and are
eligible for reparole. These guidelines are also used for D.C.
supervised releasees whose supervised release has been revoked. The
guidelines are found at 28 CFR 2.20 and consist of an Offense Behavior
Severity Index and a parole prognosis based on an actuarial tool known
as the Salient Factor Score. The Offense Behavior Severity Index
divides various crimes, including drug distribution crimes, into eight
categories, from Category One (lowest severity) to Category Eight
(highest severity). The guidelines also list four parole prognoses
based on the Salient Factor Score from ``very good'' to ``poor''. The
offense categories are arrayed on a vertical axis and the parole
prognoses on a horizontal axis. At the intersection of each offense
category and parole prognosis, there is a suggested range of months to
be served before release. For example, a prisoner with an offense
severity rating of Category Five and a parole prognosis of poor has a
suggested range of 60-72 months to be served. The Commission may set a
release date that falls within the guideline range, or make a decision
outside the guidelines.
In February 2010, the Commission Chair appointed a committee to
review the Commission's rating of crack cocaine offenses and to
recommend any changes it believed were needed. The committee's findings
are summarized below. Based on those findings, the committee
recommended that the Parole Commission amend its Offense Behavior
Severity Index to equalize the weight ratios between powder and crack
cocaine.
Study Committee Findings
Effective April 5, 1987, the Parole Commission adopted its current
guidelines for grading the severity of offenses involving cocaine
distribution. See 52 FR 5761-63 (Feb. 26, 1987).
The Commission created separate guidelines for freebase or
``crack'' cocaine, and powder cocaine, under which offenses involving
crack are sanctioned more severely than offenses involving powder
cocaine, generally under a 10-to-1 ratio. That is, an offender
distributing (or intending to distribute) a given weight of crack is
presumptively sanctioned the same as an offender distributing (or
intending to distribute) ten times that weight of powder cocaine. The
Commission instituted the change because it was concerned that its
prior guidelines did not appropriately sanction offenses related to the
freebase form of the drug given the addictive nature of crack cocaine,
the violence associated with its manufacture and distribution, and its
relatively inexpensive street sale price. Former Senator D'Amato
apparently recommended the 10-to-1 ratio. 51 FR 42594 (Nov. 25, 1986);
52 FR 5762. The basis for the selection of the 10-to-1 ratio was not
further explained. The Commission sought public comment about ``the
relative potency of `CRACK' cocaine as compared with other forms of the
drug,'' but did not receive any response. 51 FR 42594; 52 FR 5762.
The Commission's current policy was adopted at about the same time
Congress passed the Anti-Drug Abuse Act of 1986, Public Law 99-570, and
at the time the U.S. Sentencing Commission was formulating its
sentencing guidelines. Crack was a relatively new drug at the time but,
in the words of the U.S. Supreme Court, it was ``a matter of great
public concern.'' Kimbrough v. United States, 552 U.S. 85, 95 (2007).
The 1986 Anti-Drug Abuse Act reflected that concern by adopting a 100-
to-1 ratio that treated a single gram of crack as equivalent to 100
grams of powder cocaine. The Sentencing Commission incorporated the
1986 law's 100-to-1 ratio for crack offenses. Subsequently, the
Sentencing Commission conducted research into cocaine usage and
addiction as well as research into the application of the federal
sentencing guidelines. The Sentencing Commission's February 1995 report
Cocaine and Federal Sentencing Policy concluded that under the 100-to-1
sentencing disparity, low-level `street' dealers potentially receive
harsher punishments than major drug traffickers, whereas the 1986 Anti-
Drug Abuse Act was intended to have the opposite effect. The Sentencing
Commission's May 2002 report on the same subject included the following
findings:
a. Crack is typically prepared at or near the end of the
distribution chain. Two-thirds of federal crack cocaine offenders were
street-level dealers and only 5.9% performed trafficking functions.
b. ``The overwhelming majority of offenders subject to the
heightened crack cocaine penalties are black, about 85 percent in 2000
* * *. This has contributed to a widely held perception that the
current penalty structure promotes unwarranted disparity based on
race.''
c. Cocaine in any form produces the same physiological and
psychotropic effects, but powder cocaine, because it is usually
snorted, poses a lesser risk of addiction to the typical user than does
crack cocaine, which is usually smoked. Precisely quantifying this
difference in addictiveness is impossible.
d. While serious, the relative harmfulness of crack has been
exaggerated. Violence was associated only with a small minority of
crack offenses. In 2000, three out of four crack offenders had no
involvement with a weapon and even when offenders possessed weapons,
the weapons were rarely used. Only 2.3% of crack offenders used a
weapon, and only 7.9% of crack offenses involved bodily injury of any
type. Research showed that the negative effects of prenatal exposure to
crack were identical to the negative effects of cocaine powder. The
feared epidemic of youth using crack did not materialize to the extent
feared.
The Commission's study committee relied upon research collected by
the Sentencing Commission as its starting point in reviewing Parole
Commission policies for sanctioning crack cocaine offenses. Glen R.
Hanson, then Acting Director, National Institute on Drug Abuse,
National Institutes of Health, U.S. Department of Health and Human
Services, testified before the Sentencing Commission on February 25,
2002, that: ``Cocaine, in any form, produces the same effects once it
reaches the brain. It produces similar physiological and psychological
effects, but the onset, intensity and duration of its effects are
related directly to the method of use and how rapidly cocaine enters
the brain.'' According to Dr. Hanson, a drug user snorting powder
cocaine begins to feel the ``high'' within 3-5 minutes, the blood level
peaks at 10-20 minutes, and fades within 45-60 minutes. Intravenous
use, or injection--for which powder cocaine is also used--results in a
cocaine ``rush'' within 30-45 seconds and the drug's effects last for
10-20 minutes. Inhalation, or smoking--i.e., using crack--produces the
quickest and highest peak blood levels in the brain. The user
experiences the ``high'' within only 8-10 seconds. On February 12,
2008, the Senate Judiciary Subcommittee on Crime and Drugs received
similar testimony from Nora D. Volkow, current Director, National
[[Page 62344]]
Institute on Drug Abuse, National Institutes of Health, U.S. Department
of Health and Human Services, to the effect that crack and powder
cocaine have the same effect on the brain but that the user experiences
the high and low much faster by smoking crack than by snorting cocaine
powder.
Unlike the offense ratings for powder cocaine, the ratings for
crack do not require the Parole Commission to determine its purity
level before determining the severity category for the possession or
distribution of the drug. The study committee examined whether the
guidelines should be revised to consider purity level for a mixture
containing cocaine base as it does for a mixture containing cocaine
powder. When the guidelines were developed in the 1970s, the purity of
cocaine powder and heroin varied widely from original production to
street level distribution. It was not uncommon to see virtually pure
cocaine powder diluted numerous times with cutting agents as it moved
down the line through various levels of drug dealers. Therefore, the
Commission determined that the only fair way to gauge the seriousness
of a cocaine offense was to ascertain the purity of the substance and
to sanction based only on the actual amount (weight) of pure cocaine
involved.
In considering the issue of an appropriate severity rating for
crack cocaine, the Commission was aware that once crack rocks are
produced, they can be cut into smaller rocks but they cannot readily be
diluted. The purity remains the same as the product moves down the
distribution chain. Moreover, the purity of crack produced for use
generally does not vary much from one batch to the next. Much as the
purity of marijuana remains rather constant from batch to batch, the
seriousness of crack offenses seemed to be better judged strictly by
gross quantity (weight) without regard for purity.
More recent information indicates that there is some variance in
the purity levels of crack, but less so than in the purity levels of
powder cocaine. This conclusion is based on interviews conducted by
committee members and by the written conclusions of the Sentencing
Commission. The Sentencing Commission's 1995 report Cocaine and Federal
Sentencing Policy states: ``One gram of pure powder cocaine will
convert to approximately 0.89 grams of crack cocaine. The Drug
Enforcement Administration estimates that crack rocks are between 75
and 90 percent pure cocaine.''
The bulk of the Parole Commission's current caseload involving
crack sales concerns small-time street sales in the District of
Columbia. The Commission's experience is that the DEA laboratory
performs an analysis of crack confiscated by DC police only if a case
appears headed for trial. If the case appears headed for a guilty plea
or if a revocation hearing is held before a case is adjudicated, it is
often difficult for the Commission to obtain a laboratory report. As a
practical matter, Commission files frequently do not contain DEA lab
reports in crack cocaine cases, and so it would be impossible in many
cases to determine the purity level of crack involved.
The committee sought feedback from Commission hearing examiners
about the current policy and whether it should be changed. Those
examiners who responded unanimously favored equalizing the treatment of
crack and powder cocaine. The general consensus was that the existing
sanctions for crack are too harsh and discriminatory (socioeconomically
if not racially), and that many of those caught selling were not in
fact hard-core dealers but were essentially addicts trying to fund
their own habit.
In sum, the study committee found:
a. There was no empirical basis for the 10-to-1 ratio adopted by
the Parole Commission in 1987 which is currently used in Commission
guidelines.
b. Cocaine in any form produces the same physiological and
psychotropic effects on the brain.
c. Crack cocaine is more addictive than powder cocaine because the
method of taking the drug (inhalation) results in the user experiencing
a faster ``high'' and faster ``crash.'' Unfortunately, the committee
was unable to identify any authoritative sources quantifying the
increased risk of addiction that crack represents. Furthermore, a user
who injects powder also experiences a rapid high and low from the drug,
although the effects from injection are not felt quite as rapidly as
from smoking crack, and powder is more often snorted than injected.
d. According to the DEA and Sentencing Commission, one gram of
cocaine powder converts/reduces to 0.89 gram cocaine base. Conversely,
one gram of cocaine base would convert to 1.12 grams of cocaine powder.
e. As a practical matter, establishing the exact purity ratio of
crack in a transaction that is examined by the Commission but that did
not result in a trial would be all but impossible in most revocation
cases unless a practical means is found for hearing examiners to obtain
laboratory analyses on a consistent basis.
f. Commission hearing examiners who provided feedback to the
committee unanimously favored equalizing the weight-based sanctions for
crack and powder cocaine.
Revision of Sentencing Guidelines Ratio
In 1995, the Sentencing Commission recommended eliminating the
sentencing guidelines' 100-to-1 disparity in rating powder cocaine and
crack cocaine crimes. After Congress rejected that suggestion, the
Sentencing Commission recommended reducing the disparity to 5-to-1. In
2007, the Sentencing Commission adopted an ameliorative change reducing
the sentencing guidelines base offense score by two levels in crack
cases to reduce the disparity; depending on the weight of drugs
involved, the revised ratio varied from 25-to-1 to 50-to-1.
In July 2009, the House Judiciary Committee approved legislation
(H.R. 3245, The Fairness in Cocaine Sentencing Act of 2009) that would
completely eliminate the disparity between powder and crack cocaine. On
October 15, 2009, Senator Durbin introduced a draft bill (S. 1789, The
Fair Sentencing Act) in the Senate that would likewise have eliminated
the disparity. On March 11, 2010, the Senate Judiciary Committee
unanimously approved a revised version that reduced the disparity on
new sentences to 18-to-1. The full Senate passed the bill (applying an
18-to-1 ratio) on March 17, 2010, and the House approved it on July 28,
2010. Now known as the Fair Sentencing Act of 2010, the President
signed it into law on August 3, 2010.
Opponents of equalization of crack and powder cocaine offenses have
argued that differential treatment of powder and crack cocaine offenses
is supported by the association of violence with crack crimes. The new
law requires the Sentencing Commission to provide a sentencing
enhancement ``if the defendant used violence'' or threatened or
directed the use of violence. Parole Commission guidelines take
violence into account through a different method. In the case of drug
crimes involving violence, if the guidelines offense severity rating
for the violent/assaultive conduct exceeds the rating for the drug
offense, the former will be applied.
Study Committee Recommendations and Commission Action
After weighing the above findings, the study committee recommended
that the Commission propose a rule change to the paroling guidelines at
Chapter Nine of the Offense Behavior Severity Index that would equalize
the offense severity ratings for crack and powder cocaine
[[Page 62345]]
offenses. The Commission recently voted to promulgate a proposed rule
for public comment that would remove the different ratings for crack
and powder cocaine crimes. The proposed rule also makes minor revisions
to the breakdown of drug weights in the interest of greater clarity and
consistency.
Executive Order 12866
The U.S. Parole Commission has determined that this proposed 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 to require a
Federalism Assessment.
Regulatory Flexibility Act
The proposed 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).
Unfunded Mandates Reform Act of 1995
The 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 Proposed Rule
Accordingly, the U.S. Parole Commission is proposing the following
amendment to 28 CFR part 2.
PART 2--[AMENDED]
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).
2. Amend Sec. 2.20, in the U.S. Parole Commission Offense Behavior
Severity Index, Chapter Nine--Offenses Involving Illicit Drugs, by
revising the entry entitled ``921 Distribution or Possession With
Intent To Distribute'' in Subchapter C--Cocaine Offenses to read as
follows:
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
* * * * *
U.S. Parole Commission Offense Behavior Severity Index
* * * * *
Chapter Nine--Offenses Involving Illicit Drugs
* * * * *
Subchapter C--Cocaine Offenses
921 Distribution or Possession With Intent To Distribute
(a) If extremely large scale (e.g., involving 15 kilograms or more
cocaine powder of 100% purity, or equivalent amount; or 15 kilograms of
a substance containing a detectable amount of cocaine base), grade as
Category Eight [except as noted in (c) below];
(b) If very large scale (e.g., involving at least 5 kilograms but
less than 15 kilograms cocaine powder of 100% purity, or equivalent
amount; or at least 5 kilograms but less than 15 kilograms of a
substance containing a detectable amount of cocaine base), grade as
Category Seven [except as noted in (c) below];
(c) Where the Commission finds that the offender had only a
peripheral role*, grade conduct under (a) or (b) as Category Six;
(d) If large scale (e.g., involving at least 1 kilogram but less
than 5 kilograms cocaine powder of 100% purity, or equivalent amount;
or at least 1 kilogram but less than 5 kilograms of a substance
containing a detectable amount of cocaine base), grade as Category Six
[except as noted in (e) below];
(e) Where the Commission finds that the offender had only a
peripheral role, grade conduct under (d) as Category Five;
(f) If medium scale (e.g., involving at least 100 grams but less
than 1 kilogram cocaine powder of 100% purity, or equivalent amount; or
at least 100 grams but less than 1 kilogram of a substance containing a
detectable amount of cocaine base), grade as Category Five;
(g) If small scale (e.g., involving at least 5 grams but less than
100 grams cocaine powder of 100% purity, or equivalent amount; or at
least 5 grams but less than 100 grams of a substance containing a
detectable amount of cocaine base), grade as Category Four;
(h) If very small scale (e.g., involving at least 1 gram but less
than 5 grams cocaine powder of 100% purity, or equivalent amount; or at
least 1 gram but less than 5 grams of a substance containing a
detectable amount of cocaine base), grade as Category Three;
(i) If extremely small scale (e.g., involving less than 1 gram
cocaine powder of 100% purity, or equivalent amount; or less than 1
gram of a substance containing a detectable amount of cocaine base),
grade as Category Two.
* * * * *
Dated: September 17, 2010.
Isaac Fulwood,
Chairman, U.S. Parole Commission.
[FR Doc. 2010-24648 Filed 10-7-10; 8:45 am]
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