[Federal Register Volume 80, Number 114 (Monday, June 15, 2015)]
[Proposed Rules]
[Pages 34111-34113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13998]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2

[Docket No. USPC-2015-01]


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 for determining whether a prisoner who was sentenced under the 
D.C. Code and committed their offense before March 3, 1985 is suitable 
for release on parole. For these cases, the Commission will apply the 
regulations of the former District of Columbia Board of Parole that 
were effective before March 1985. Prisoners who are serving D.C. Code 
sentences and who committed their offense before March 3, 1985 would be 
considered under the proposed regulation at their next regularly 
scheduled hearing or, if they have not yet received a parole hearing, 
at their initial parole hearing.

DATES: Submit comments on or before August 14, 2015.

ADDRESSES: Submit your comments, identified by docket identification 
number USPC-2015-01 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 General Counsel, U.S. Parole Commission, 
attention: USPC Rules Group, 90 K Street NE., Washington, DC 20530.
    3. Fax: (202) 357-1083.

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, U.S. 
Parole Commission, 90 K Street NE., Washington, DC 20530, telephone 
(202) 346-7030. Questions about this publication are welcome, but 
inquiries concerning individual cases cannot be answered over the 
telephone.

SUPPLEMENTARY INFORMATION: The U.S. Parole Commission is responsible 
for making parole release decisions for District of Columbia felony 
offenders who are eligible for parole. D.C. Code section 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 decision-making 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 D.C. 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

[[Page 34112]]

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 still 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 (D.C. Cir. 
2004) (Fletcher II). Following upon the Fletcher II decision and the 
decision in Fletcher v. Reilly, 433 F.3d 867 (D.C. 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 D.C. 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, which showed that not every D.C. prisoner must be 
reconsidered under the 1987 guidelines to avoid ex post facto problems. 
In response to this decision, the Commission promulgated a rule calling 
for application of the 1987 D.C. Board Guidelines to any offender who 
committed his crime between March 4, 1985 (the effective date of the 
``1987 Guidelines''), and August 4, 1998 (the last day the D.C. Board 
exercised parole release authority) (``Sellmon Rule''). 74 FR 34688 
(July 17, 2009) (interim rule, effective August 17, 2009) and 28 CFR 
2.80(o) (November 13, 2009) (final rule).
    Since the Sellmon decision, prisoner-plaintiffs who committed their 
offenses before March 1985 have sought to have the D.C. Courts make a 
similar decision with regard to the regulations that the former D.C. 
Board of Parole promulgated in 1972 and were in effect when they 
committed their offenses. Because of the broad discretion to grant 
parole which was vested in the D.C. Board of Parole under the 1972 
regulations, federal courts have not found that Commission's use of its 
revised guidelines violates the Ex Post Facto Clause. However, the 
Parole Commission has decided to reconsider its use of the 2000 
regulations in light of the progression of cases involving ex post 
facto claims and parole guidelines.
    If a prisoner has been previously granted a presumptive parole date 
under the Commission's guidelines at Sec.  2.80(b) through (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.

Executive Order 13132

    These proposed 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 
proposed rules do not have sufficient federalism implications requiring 
a Federalism Assessment.

Regulatory Flexibility Act

    These proposed rules 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

    These proposed 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 proposed 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 proposed 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. 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 Rules

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

PART 2--PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, 
YOUTH OFFENDERS, AND JUVENILE DELINQUENTS

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 (a)(5) to read as follows:


Sec.  2.80  Guidelines for D.C. Code offenders.

    (a) * * *
    (5) A prisoner who committed the offense of conviction before March 
3, 1985 who is not incarcerated as a parole violator and has not been 
granted a parole effective date may receive a parole determination 
using the 1972 regulations of the former District of Columbia Board of 
Parole (9 DCMR 105.1):
    (i) Factors considered. Among others, the Commission takes into 
account some of the following factors in making its determination as to 
parole:
    (A) The offense, noting the nature of the violation, mitigating or 
aggravating circumstances and the activities and adjustment of the 
offender following arrest if on bond or in the community under any pre-
sentence type arrangement.
    (B) Prior history of criminality noting the nature and pattern of 
any prior offenses as they may relate to the current circumstances.
    (C) Personal and social history of the offender, including such 
factors as his family situation, educational development, 
socialization, marital history, employment history, use of leisure time 
and prior military experience, if any.
    (D) Physical and emotional health and/or problems which may have 
played a role in the individual's socialization process, and efforts 
made to overcome any such problems.
    (E) Institutional experience, including information as to the 
offender's overall general adjustment, his ability to handle 
interpersonal relationships, his behavior responses, his planning for 
himself, setting meaningful goals in areas of academic schooling, 
vocational education or training, involvements in

[[Page 34113]]

self-improvement activity and therapy and his utilization of available 
resources to overcome recognized problems. Achievements in 
accomplishing goals and efforts put forth in any involvements in 
established programs to overcome problems are carefully evaluated.
    (F) Community resources available to assist the offender with 
regard to his needs and problems, which will supplement treatment and 
training programs begun in the institution, and be available to assist 
the offender to further serve in his efforts to reintegrate himself 
back into the community and within his family unit as a productive 
useful individual.
    (ii) If a prisoner has been previously granted a presumptive parole 
date under the Commission's guidelines at Sec.  2.80(b) through (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.
    (iii) Prisoners who have previously been considered for parole 
under the 1987 guidelines of the former D.C. Board of Parole will 
continue to receive consideration under those guidelines.

    Dated: June 3, 2015.
J. Patricia Wilson Smoot,
Acting Chairman, U.S. Parole Commission.
[FR Doc. 2015-13998 Filed 6-12-15; 8:45 am]
 BILLING CODE 4410-31-P