[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63115-63117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26463]


=======================================================================
-----------------------------------------------------------------------

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Parole Commission is adopting a final rule to apply 
the parole guidelines of the former District of Columbia Board of 
Parole that were in effect until March 4, 1985 in its parole 
decisionmaking for D.C. Code prisoners who committed their offenses 
while those guidelines were in effect.

DATES: Effective October 19, 2015.

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: 
    Background: 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 enacted regulations 
to implement its new duties, including paroling policy guidelines at 28 
CFR 2.80. 63 FR 39172-39183 (July 21, 1998). In enacting these 
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 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 be covered by 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. Notwithstanding that ex post facto 
violations must be shown on a case-by-case basis, as a matter of 
administrative convenience, the Commission chose to apply the same 
rules to all similarly situated offenders. Accordingly, the Commission 
enacted 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 find 
that the Commission's use of the revised 2000 parole guidelines 
violates the Ex Post Facto Clause when applied retroactively to their 
cases. 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 declined to find 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 
developing case law that relates to parole guidelines and the Ex Post 
Facto Clause, and consistent with its previous decision to apply the 
D.C. Board of Parole's guidelines that were in effect at the time that 
the D.C. Code offender committed the offense, i.e., the Sellmon rule.
    Discussion of the Rule and Public Comment: On June 15, 2015, the 
Parole Commission published a proposed rule in the Federal Register 
proposing new parole guidelines for D.C. Code prisoners who committed 
their offenses before March 3, 1985. See 80 FR 34111 (June 15, 2015). 
After publishing the proposed rule change, the Parole Commission 
received comments from 3 organizations and several private individuals. 
The comments were generally in favor of adopting the rule, and included 
additional suggestions for amendments, which are highlighted below:
    Rehearings: Many commenters recommended that the rule include the 
provision in the D.C. Board's 1972 regulations that called for annual 
rehearings. The final rule restates the D.C. Board's regulation calling 
for annual rehearings as suggested, but includes the portion of the 
D.C. Board's regulation that permits the Commission to establish a 
rehearing date ``at any time it feels such would be proper.''
    Statutory criteria: Many commentators recommended that the Parole 
Commission include a restatement of the statutory criteria for release 
on parole. The statutory criteria for release of D.C. Code offenders, 
which applies to all D.C. Code prisoners and has not changed since the 
1970's, are already contained in the regulations at 28 CFR 2.73. 
Instead, the final rule will incorporate another section of the D.C. 
Board's regulations that restated the Board's discretionary authority 
to grant parole.
    Offenses committed on March 3, 1985: Several commenters noted that 
the Sellmon rules apply to offenses after March 3, 1985, and the 
proposed rule would apply the 1972 guidelines to offenses before that 
date, leaving a void with regard to offenses committed on March 3, 
1985. This suggestion was adopted and the final rule states that the

[[Page 63116]]

1972 parole guidelines apply to offenses committed ``on or before March 
3, 1985.''
    Retroactive consideration: Several commenters recommended that the 
Commission follow the procedure it followed after publication of the 
Sellmon rule: That it determine what decision it would have made at the 
initial hearing, and each subsequent hearing, as if it had applied the 
1972 rules at that time. Such a procedure was required in applying the 
1987 guidelines at issue in Sellmon, because the grid score is computed 
at each hearing using the prior score as a starting point. The 1972 
guidelines are not structured in such a way that this procedure is 
necessary.
    Reasons for Denial of Parole: A few commenters recommended that the 
Commission modify the rule to require that the Commission provide 
reasons for denial of parole, which is not found in the 1972 
regulations. The Parole Commission's regulations at 28 CFR 2.74(a) 
already require the Commission to ``provide the prisoner with a notice 
of action that includes an explanation of the reasons for the 
decision,'' so an additional requirement is not needed.
    Further, the recommendation by several commenters that the 
Commission modify the rule to require it to inform the parole applicant 
of steps he needs to take to be deemed suitable for parole release was 
not required by the 1972 rules. Parole Commission hearing examiners may 
continue, as is current practice, to make such recommendations where 
appropriate, but are not compelled to do so in every case.
    Transcripts of hearings/disclosure to inmate, counsel, and others: 
Some commenters recommend that records be made available to the 
prisoner, his attorney, or family. Although in 1972 the D.C. Board 
deemed records of parole hearings confidential and did not permit 
disclosure to prisoners, the Commission's regulations already provide 
for disclosure of documents. See 28 CFR 2.89 (miscellaneous provisions) 
and Sec.  2.56 (disclosure of Parole Commission file).
    Implementation: The Parole Commission will identify those prisoners 
who committed their offenses on or before March 4, 1985, and who have 
previously had a parole hearing at which the Parole Commission applied 
the 2000 parole guidelines for its decision and who have not received a 
parole effective date. The Commission will schedule special dockets for 
these prisoners as soon as possible, by videoconference if available, 
and with the goal of completing the hearings in 6 months.

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 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 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. 
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

    Accordingly, the U.S. Parole Commission amends 28 CFR part 2 as 
follows:

PART 2--[AMENDED]

0
1. The authority citation for 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 adding paragraph (p) to read as follows:


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

* * * * *
    (p)(1) A prisoner who is eligible under the criteria of paragraph 
(p)(2) of this section may receive a parole determination using the 
parole guidelines in the 1972 regulations of the former District of 
Columbia Board of Parole (9 DCMR section 105.1) (hereinafter ``the 1972 
Board guidelines'').
    (2) A prisoner must satisfy the following criteria to obtain a 
determination using the 1972 Board guidelines:
    (i) The prisoner committed the offense of conviction on or before 
March 3, 1985;
    (ii) The prisoner is not incarcerated as a parole violator; and
    (iii) The prisoner has not been granted a parole effective date.
    (3) The granting of a parole is neither a constitutional or 
statutory requirement, and release to parole supervision by Commission 
action is not mandatory.
    (4) Factors considered: Among others, the U.S. Parole Commission 
takes into account some of the following factors in making its 
determination as to parole:
    (i) 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.
    (ii) Prior history of criminality, noting the nature and pattern of 
any prior offenses as they may relate to the current circumstances.
    (iii) 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.
    (iv) 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.
    (v) 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,

[[Page 63117]]

setting meaningful goals in areas of academic schooling, vocational 
education or training, involvements in 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.
    (vi) 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.
    (5) A prisoner who committed the offense of conviction on or before 
March 3, 1985 who is not incarcerated as a parole violator and is 
serving a maximum sentence of five years or more who was denied parole 
at their original hearing ordinarily will receive a rehearing one year 
after a hearing conducted by the U.S. Parole Commission. In all cases 
of rehearings, the U.S. Parole Commission may establish a rehearing 
date at any time it feels such would be proper, regardless of the 
length of sentence involved. No hearing may be set for more than five 
years from the date of the previous hearing.
    (6) If a prisoner has been previously granted a presumptive parole 
date under the Commission's guidelines in paragraphs (b) through (m) of 
this section, 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.
    (7) Prisoners who have previously been considered for parole under 
the 1987 guidelines of the former DC Board of Parole will continue to 
receive consideration under those guidelines.
    (8) Decisions resulting from hearings under this section may not be 
appealed to the U.S. Parole Commission.

    Dated: October 13, 2015.
J. Patricia Wilson Smoot,
Chairman, U.S. Parole Commission.
[FR Doc. 2015-26463 Filed 10-16-15; 8:45 am]
BILLING CODE 4410-31-P