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[Federal Register: October 8, 2010 (Volume 75, Number 195)]
[Proposed Rules]               
[Page 62342-62345]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc10-10]                         

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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the now-repealed indeterminate sentencing system.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]
BILLING CODE 4410-31-P
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