[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)]
[Proposed Rules]
[Pages 47603-47605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18421]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2014-01]


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: Notice of proposed rulemaking.

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SUMMARY: The United States Parole Commission proposes to revise its 
rules pertaining to decisions to revoke terms of supervision without a 
hearing. Specifically, we propose a rule that would allow a releasee 
charged with only administrative violations or specifically identified 
misdemeanor crimes to apply for a prison sanction of 8 months or less. 
If a releasee qualifies and applies for a sanction under this section, 
the Commission may approve a revocation decision that includes no more 
than 8 months of imprisonment without using its normal guidelines for 
decision-making.

DATES: Submit Comments on or before October 14, 2014.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2014-01 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 Case Operations, U.S. Parole Commission, 
attention: Stephen J. Husk, Case Operations Administrator, 90 K Street, 
NE., Washington, DC 20530.
    3. Fax: (202) 357-1086.

FOR FURTHER INFORMATION CONTACT: Stephen J. Husk, Case Operations 
Administrator U.S. Parole Commission, 90 K Street, NE., Washington, DC 
20530, telephone (202) 346-7061. Questions about this publication are 
welcome, but inquiries concerning individual cases cannot be answered 
over the telephone.

SUPPLEMENTARY INFORMATION: The Parole Commission is responsible for 
paroling those federal and District of Columbia offenders serving 
parole-eligible

[[Page 47604]]

sentences and for monitoring the supervision of paroled offenders and 
DC offenders whose sentences require supervised release after serving 
their prison terms. When determining how much prison time should be 
imposed when revoking a term of parole or supervised release, the 
Commission applies guidelines for its decision-making. There are two 
aspects of the offender's behavior/history used to guide the Commission 
in determining how much prison time to impose. First, we consider the 
severity of the current violations of supervision based on an eight 
level severity index. In addition, the Commission applies a ``salient 
factor score'' to aide in determining the risk of potential violations 
of supervision. The salient factor score is based on six items related 
to the offender's record of past criminal convictions, supervision 
history and age.
    For persons who have not violated the law while on supervision but 
fail to comply with one or more of the other conditions ordered by the 
Commission, the severity of the non-criminal violation is treated the 
same as the lowest level law violation on our severity index. Prior to 
January of 2012, the Commission had no special procedures to sanction 
non-criminal violations differently or to consider an offender's 
acceptance of responsibility for the violation behavior into its 
decision-making.
    In January of 2012, the Commission initiated a pilot project 
(Short-Term Intervention for Success) for persons arrested in the 
District of Columbia on USPC warrants who had committed only non-
criminal violations of parole or supervised release. The project was 
also extended to persons re-arrested for minor crimes similar to those 
that the Commission does not usually consider as ``prior convictions'' 
when assessing its Salient Factor Score. Those persons approved for 
participation in the pilot project were not sanctioned in accordance 
with the Commission's customary guidelines. Instead, the Commission 
imposed a prison sanction not to exceed 8 months. To be considered for 
this shorter sanction, the offender was required to (1) promptly accept 
responsibility for the violations and; (2) agree to modify the non-
compliant behavior to successfully complete any future period of 
supervision.
    When the Short-Term Intervention for Success (SIS) pilot project 
started in the District of Columbia, its purpose was to determine 
whether shorter period of confinement could achieve swifter resolution 
of revocation matters at reduced costs to various criminal justice 
agencies without jeopardizing public safety.
    When the SIS project started, the total number of prisoners 
confined in the District of Columbia on Commission warrants exceeded 
700. Many of those prisoners were being held solely on administrative 
(i.e. non-criminal) violations of supervision. As of June 23, 2014, the 
total population was 416.
    The prison population for parole/supervised release violators in 
the District of Columbia has been reduced, in large part, due to the 
shorter and swifter sanctions imposed via the SIS project. A study of 
828 administrative violators who were sanctioned prior to the start of 
the SIS project showed that they were confined, on average, for 11 
months. Of the 889 persons that were sanctioned during the SIS project 
(through June 30, 2014), the average sanction was 3.4 months. This 69% 
reduction in length of prison terms has had significant impact on the 
prison population and the costs associated with incarceration. Because 
prisoners were accepting responsibility for the violations at a 
probable cause hearing, the SIS project also resulted in a faster 
resolution to revocation matters and thus a reduction of the time spent 
of various agencies in preparing for and attending revocation hearings.
    At the Commission's request, an evaluation of the SIS project was 
completed by Dr. James Austin and Dr. Calvin Johnson in May of 2013. 
This evaluation showed that, after serving the shorter periods of 
incarceration, persons that participated in SIS had not been re-
arrested at a rate greater than the sample of 828 that received the 
longer prison sanctions prior to SIS.
    The SIS program achieved its goals of swifter resolution of 
administrative violations, shortening the prison stays for lower level 
violations and saving costs to various law enforcement agencies and 
public defender offices. Based on the analysis completed in the May 
2013 evaluation, it has done so with no negative impact on recidivism.
    Because the majority of the parole and supervised release violators 
are arrested in the District of Columbia (and its proximity to 
Commission headquarters), the SIS pilot project was extended only to 
administrative violators in the District of Columbia. However, there is 
also a smaller number of prisoners confined each year on Commission 
warrants outside the District of Columbia (both federal and D.C) who 
have committed non-criminal violations similar to those who 
participated in the SIS program and have similar criminal backgrounds.
    Section 2.66 already allows for the Commission to make a revocation 
decision without a hearing in certain instances. The proposed rule 
would expand that section to create a special procedure for those that 
commit only non-criminal violations of supervision or very minor 
crimes. The proposed rule extends the procedure to persons arrested 
outside the District of Columbia by allowing an offender to apply for 
the reduced sanction at a preliminary interview (i.e. probable cause 
proceeding conducted by a U.S. Probation Officer outside of the 
District of Columbia). In addition, it expands the scope of misdemeanor 
crimes that will be treated as administrative violations under this 
section to include arrests for possession of an illegal drug or drug 
paraphernalia for personal use only. The Commission has always 
sanctioned positive drug tests as an administrative violation. The 
proposed rule would allow an offender that is arrested in possession of 
an illegal drug for personal use (or paraphernalia indicating personal 
use) to be sanctioned similarly to an offender that uses an illegal 
drug and then tests positive for that substance.
    Under the proposed rule, Commission retains its discretion to 
disapprove an offender for a sanction under this section if we believe 
that case specific factors indicate that resolving the matter under the 
normal revocation procedures is more appropriate. In addition, the 
proposed rule includes a departure from our normal policy that an 
offender whose supervised release is revoked will receive another term 
of supervised release that is equal in length to the maximum term 
authorized by the law. Specifically, for these minor types of 
violations, the proposed rule allows for the Commission to impose a 
shorter period of supervised release if we believe that a shorter 
period of supervision adequately addresses the offender's needs without 
putting the public at risk.

Executive Order 13132

    These regulations 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, these rules 
do not have sufficient federalism implications requiring a Federalism 
Assessment.

Regulatory Flexibility Act

    The rules will not have a significant economic impact on a 
substantial number of small entities within the

[[Page 47605]]

meaning of the Regulatory Flexibility Act, 5 U.S.C. Sec.  605(b).

Unfunded Mandates Reform Act of 1995

    The rules 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)

    These rules are not ``major rules'' 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 rules 
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, these are rules of agency practice 
or procedure that do not substantially affect the rights or obligations 
of non-agency parties, and do not come within the meaning of the term 
``rule'' as used in Section 804(3)(C) now codified at 5 U.S.C. Sec.  
804(3) (C). Therefore, the reporting requirement of 5 U.S.C. Sec.  801 
does not apply.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
Parole.

The Proposed Rules

    Accordingly, the U.S. Parole Commission proposes to adopt the 
following amendment to 28 CFR Part 2.

28 CFR PART 2--[AMENDED]

0
1. The authority citation for 28 CFR part 2 continues to read as 
follows:

    Authority: 18 U.S.C. Sec.  4203(a)(1) and 4204(a)(6).

0
2. Add paragraph (d) to Sec.  2.66 to read as follows:


Sec.  2.66  Revocation Decision Without a Hearing.

* * * * *
    (d) Special Procedures for Swift and Short-Term Sanctions for 
Administrative Violations of supervision: (1) An alleged violator may, 
at the time of the probable cause hearing or preliminary interview, 
waive the right to a revocation hearing and apply in writing for an 
immediate prison sanction of no more than 8 months. Notwithstanding the 
reparole guidelines at Section 2.21, the Commission will consider such 
a sanction if:
    (i) The releasee has not already postponed the initial probable 
cause hearing/preliminary interview by more than 30 days;
    (ii) The charges alleged by the Commission do not include a 
violation of the law(*);
    (iii) The releasee has accepted responsibility for the violations ;
    (iv) The releasee has agreed to modify the non-compliant behavior 
to successfully complete any remaining period of supervision and;
    (v) The releasee has not already been sanctioned pursuant to this 
paragraph.
    (2) A sanction imposed pursuant to paragraph (d)(1) of this section 
may include any other action authorized by Sections 2.105 or 2.218.
    (3) Notwithstanding the general policy at 2.218(e), a decision to 
revoke a term of supervised release made pursuant to paragraph (d)(1) 
of this section may include a further term of supervised release that 
is less than the maximum authorized term.
    (4) Any case not approved by the Commission for a revocation 
sanction pursuant to paragraph (d)(1) of this section shall receive the 
normal revocation hearing procedures including the application of the 
guidelines at 28 CFR 2.21.
    *Note to paragraph (d): For purpose of paragraph (d)(1) only, the 
Commission will consider the sanctioning of the following crimes as 
administrative violations if they have been charged only as 
misdemeanors:
1. Public Intoxication
2. Possession of an Open Container of Alcohol
3. Urinating in Public
4. Traffic Violations
5. Disorderly Conduct/Breach of Peace
6. Driving without a License or with a revoked/suspended license
7. Providing False Information to a Police Officer
8. Loitering
9. Failure to Pay court ordered support (i.e. child support/alimony)
10. Solicitation/Prostitution
11. Resisting Arrest
12. Reckless Driving
13. Gambling
14. Failure to Obey a Police Officer
15. Leaving the Scene of an Accident (only if no injury occurred)
16. Hitchhiking
17. Vending without a License
18. Possession of Drug Paraphernalia (indicating purpose of personal 
use only)
19. Possession of a Controlled Substance (for personal use only)

    Dated: July 30, 2014.
Cranston J. Mitchell,
Vice Chairman, U.S. Parole Commission.
[FR Doc. 2014-18421 Filed 8-13-14; 8:45 am]
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